J-A04030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.D.W.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

F.W., JR.

                            Appellee                   No. 2792 EDA 2016


                  Appeal from the Order Entered August 3, 2016
                 In the Court of Common Pleas of Lehigh County
                   Domestic Relations at No(s): 2014-FC-0538

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

MEMORANDUM BY SOLANO, J.:                                  FILED MAY 04, 2017

        Appellant, A.D.W. (“Mother”) appeals from a custody order regarding

her children, M.C.W. (born 2005) and T.P.W. (born 2008) (collectively

“Children”). Mother contends the court abused its discretion and committed

an error of law in denying her motion to relocate the primary residence of

her and the Children from Pennsylvania to South Carolina.          Mother also

challenges the decision to change the custody arrangements from Mother

having primary custody to both Mother and F.W., Jr. (“Father”) having

shared physical custody, because Father withdrew his petition to modify the

custody arrangement. We affirm.

        We adopt the facts as set forth by the trial court:


____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-A04030-17


             Mother informed Father in writing of her intention to
          move with [Children], to Moore, South Carolina. Pursuant
          to Pa.R.C.P. 1915.17 and 23 Pa.C.S.A. § 5337(c), on
          January 15, 2016[,] Mother served Father with notice of
          relocation within sixty days of her anticipated move,
          April 2, 2016. She provided information about the location
          and her proposed modified custody agreement.              Her
          temporary new address at the home of Maternal
          Grandmother would be . . . , Moore, South Carolina 29369.
          She identified the school that the children will be attending
          ....

             Mother explained that she was moving because
          Maternal Grandmother, age 68, semi-retired with health
          issues, had moved to Moore, South Carolina, and is in
          need of Mother’s physical assistance. She added that
          there will not be any remaining family for Mother in
          Pennsylvania. Most importantly, Mother expounded upon
          her inability to financially support herself in the Lehigh
          Valley as the result of two events that will occur in the fall
          of 2016. Pursuant to the Property Settlement Agreement
          signed by the parties and filed December 21, 2015 in the
          divorce action, Mother is required to refinance the
          mortgage on her residence, the marital home, in order to
          remove Father from mortgage liability.[1] The Property
          Settlement Agreement also provides that the term of
          alimony payments to Mother from Husband terminates in
          December of 2016. As a consequence, Mother explained
          that she will have to sell the home, move from the
          residence where she and the children have lived for four
          years. Mother’s income from her part-time employment is
          insufficient to qualify for refinancing of the mortgage. She
          proposed that in South Carolina, she will be financially able
          to support the children where the cost of living is less than
          in the Lehigh Valley. She purported that the lower cost of
____________________________________________
1
  The agreement did not require the sale of the marital residence. Rather,
the agreement provided that if Mother was unable to assume sole
responsibility for the mortgage and release Father from any obligation to pay
the mortgage within nine months from the date of the agreement, then the
marital residence would be listed for sale. Settlement Agreement, 12/21/15,
at 10.



                                           -2-
J-A04030-17


       living will create a stable financial environment for her to
       support the children.

           Her proposed custodial schedule is as follows. Mother
       and Father shall share legal custody; sole physical custody
       shall be vested in Mother.       Father shall exercise six
       uninterrupted weeks of visitation in the summer beginning
       immediately after the close of school, during which time he
       will celebrate his son’s birthday, Memorial Day, and
       Father’s Day with the Children. Father will also have one
       week of custody over the Christmas break from school. In
       addition, he will have either a week of custody over Spring
       Break or the majority of Thanksgiving break, depending
       upon whether the year is ‘even’ or ‘odd.’

           Father objected to the relocation and to the
       modification of the custody schedule set forth in the
       agreed order of March 26, 2015. On February 10, 2016,
       he filed a Counter Affidavit regarding relocation and a
       Petition for Modification. In response, Mother filed an
       Answer and New Matter on March 16, 2016 requesting that
       the Court grant her relocation as per the terms of her
       notice.   On April 5, 2016, Father filed his Answer to
       Mother’s New Matter. A custody conference was held in
       May 2016 and thereafter the matter was listed for trial;
       trial commenced July 8, 2016 during which an attempt was
       made to interview the Children.          The interview was
       cancelled; the Court found that both children exhibited
       substantial anxiety in the Court’s presence in response to
       preliminary attempts to discuss the family. The Court was
       advised that the Children were also upset in anticipation of
       coming into court. On or before July 14, 2016, both
       parties submitted briefs; the matter was taken under
       advisement. An Order for custody was filed on August [3],
       2016; this is the opinion in support of that order.

       . . . Mother has not been straightforward in her notice to
       Father in setting forth her motives for the move. In
       addition to those reasons identified in the notice, the
       testimony at trial revealed that Mother had other motives
       for relocating not revealed in her writing. Mother planned
       to move to maternal grandmother’s home and upon the
       termination of her alimony, marry her fiancé. Her fiancé is
       a longtime friend and a South Carolina resident who lives

                                  -3-
J-A04030-17


          just ten miles from maternal grandmother’s home. Mother
          and witnesses on her behalf testified that the close
          proximity of the Mother’s proposed South Carolina home
          and that of Fiancé was not planned; the Court found this to
          be disingenuous on Mother’s part and discourteous to all
          involved.

                                       *       *   *

          Mother and Father were married January 21, 2003; they
          lived at Mother’s home, . . . , Hellertown, Pennsylvania,
          until May 2012. In 2012, they purchased the marital
          residence, . . . , in Emmaus, where the family resided
          together until separation in April 2014 when Father left the
          home. Mother and the Children have continued to reside
          at the marital residence. The residence is currently under
          an agreement of sale. The divorce was finalized in January
          2016. . . .

              Mother is . . . age 39. She has been employed part-
          time as a Salon Coordinator . . . in Bethlehem,
          Pennsylvania for several years. She works Tuesday thru
          Saturday for 30 hours a week. Her monthly income is
          approximately $1,000.      She is a graduate of Georgia
          Southern University with a bachelor’s degree in Hotel and
          Restaurant Management with a minor in Business
          Administration. After graduation she was employed in her
          field at Hilton Head Island, SC.         She moved to
          Pennsylvania and purchased a home. She has previously
          been employed in a beauty salon, Chili’s Grill & Bar, and
          LA Weight Loss Centers, before taking her current job.
          She has been actively involved in organizing a successful
          fund raising event each year since maternal grandfather’s
          death due to pancreatic cancer.

             Father is . . . age 39. Since separation in April 2014,
          Father has resided at . . . , Allentown, the home of retired
          paternal grandparents, . . . . The home is located in the
          Allentown School District.[2] Father is a veteran, an Army
____________________________________________
2
 According to the trial court, the Allentown School District “falls short of the
quality of education at other suburban school districts,” which includes the
Children’s present school district. Trial Ct. Op., 8/8/16, at 10.


                                           -4-
J-A04030-17


       Reservist, and was deployed to Iraq and Kosovo. He is
       employed as a software implementation engineer . . . since
       2007. He works 8 AM until 5 PM Monday thru Friday, and
       on Tuesday and Thursday he works from home.

          The divorce complaint was filed by Mother on April 24,
       2014[,] ten days after Father vacated the marital
       residence. Since separation, Mother has been the primary
       caretaker of the Children in the marital residence. In
       December 2014, Mother became engaged to [Fiancé] who
       has been her friend since high school; they reconnected on
       Facebook in 2008. Mother and Fiancé have been in a
       relationship since spring of 2014. Around that same time,
       the Children met him and, later, in the summer, they
       vacationed with him and his two children.

           On or about this same time, Fiancé, who was residing in
       North Carolina at that time, had decided to move to South
       Carolina to be closer to his own children who had relocated
       with their mother, Fiancé’s ex-wife, to Spartanburg, South
       Carolina. In December 2014, Mother decided to move to
       South Carolina. Within a month, Fiancé applied for a job in
       the Spartanburg, South Carolina area and he listed his
       North Carolina home for sale. After completing his South
       Carolina     educational     certification  necessary    for
       employment in his field, Fiancé moved from North Carolina
       in July 2015 to Duncan, South Carolina, approximately
       fifteen miles from his children. He is employed as an
       Assistant Principal at the Carver Middle School.

           In April 2015 after Mother’s decision to move to South
       Carolina, . . . Maternal Grandmother[] listed her
       Pennsylvania home for sale, as she, too, had decided to
       move to South Carolina. In the fall of 2015, Maternal
       Grandmother purchased [a home in] Moore, South
       Carolina, the residence to which Mother seeks to relocate.
       The home is located ten miles from the home of [Fiancé].
       Maternal Grandmother, age 68, chose South Carolina
       allegedly due to its climate and its affordability. She has
       no relatives in South Carolina; the closest relative is two
       hours away in Georgia.       Maternal Grandmother[] is a
       cancer survivor, has [chronic obstructive pulmonary
       disease], arthritis, and carcinoma in her lungs that is in


                                  -5-
J-A04030-17


       remission. She is semi-retired and works on-line with a
       company out of Emmaus, Pennsylvania.

          In the meantime, the parties entered into a final
       custody agreement on March 26, 2015, such that Mother
       has primary custody of the Children and that Father has
       periods of partial custody on alternating weekends Friday
       until Sunday and on alternating Saturdays 10 AM until
       3:00 PM and every Tuesday and Thursday 4:30 PM until
       7:00 PM. Essentially, Father has contact with the Children
       no less than every two days.

          On December 21, 2015, an agreement was reached
       regarding the division of the marital property. The parties
       agreed that Mother could keep possession of the marital
       home and that she would remove Father’s name from the
       mortgage no later than September 2016. In addition,
       Father agreed to pay alimony, $714 monthly, until
       December 2016. After the alimony payments cease at the
       end of 2016, Mother, who is only employed part-time, will
       be unable to financially support the marital residence as
       her home or refinance the mortgage. Mother has chosen
       to work part time. She has sought employment at one
       location in the Lehigh Valley. She did not look for full time
       employment because she was going to relocate to South
       Carolina.

          In January 2016, the parties were divorced and
       thereafter, Mother provided Father with notice of her
       intention to move to Moore, South Carolina, approximately
       670 miles from Allentown, or a ten hour drive. In March
       and in April 2016, Mother and the Children spent the
       weekend with Fiancé at his home in South Carolina. In
       May 2016, Fiancé was held in contempt in his own custody
       case, having spent the night with an unmarried woman,
       Mother, with his kids and the Children. At the hearing[,]
       he testified that they were engaged since December 2014.
       The [marriage] date is set for December 2016, after the
       termination of alimony.




                                   -6-
J-A04030-17


Trial Ct. Op., 8/8/16, at 1-8 (footnotes and citations omitted).3

       As noted above, Father filed a petition for modification, seeking a

change from Mother having primary physical custody to both parents sharing

physical custody.        Father’s Pet. to Modify Custody, 2/10/16, at ¶ 12

(unpaginated). Following a pre-trial conference in June, Father withdrew his

petition for modification on July 8, 2016, the day of trial.        Final Order,

8/3/16, at 1 n.1. Prior to the start of trial, the court and the parties’ counsel

discussed whether the issue of custody was properly before the court:

          The court: Where does that leave us?

          [Father’s counsel]: With just the relocation matter.

                                       *       *   *

          [Mother’s counsel]: I’m not sure that that leaves us with
          just the relocation matter, but if he withdraws it, I guess
          that’s the only thing pending before the court for purposes
          of this hearing. But there’s no issue with respect to
          primary physical custody residing in my client, even after
          this hearing concludes; because there’s no -- there’s no
          issue before the Court with respect to a change of custody
          as was in this petition to modify. So I believe that that
          resolves the issue with respect to whether or not there will
          be any change in the physical custody. There is joint legal
          custody between the parties, but my client has primary
          physical, and [Father] has partial physical [custody].

                                       *       *   *



____________________________________________
3
  The opinion is timestamped as “filed” on August 5th, and copies were
mailed that same day; but the docket reflects that the opinion was docketed
on August 8th.



                                           -7-
J-A04030-17


       The court: It begs the question that if her relocation
       request would be denied, and she moves nevertheless,
       then the Court would have to rule on some kind of
       schedule.

       [Mother’s counsel]: If there’s nothing before the court.
       Am I wrong about that?

       The court: No, but that’s an absurd result. Her case opens
       the door.

       [Mother’s counsel]: [Father’s] withdrawing the petition.

                               *    *    *

       The court: I don’t understand why you’re withdrawing it.

       [Father’s counsel]: At the pre-trial conference [held in
       June], Your Honor noted that you would not grant
       [Father’s] petition [to modify custody] on a hypothetical,
       that hypothetical being [Father] obtaining an address in
       the children’s school district as he currently lives with his
       parents [in the Allentown School District]. Given the short
       time between then and now, he was not able to obtain a
       residence even though he has done the leg work and is
       preparing to do so. So at this time in deference to the
       Court, we would respectfully request to withdraw without
       prejudice.

       [Mother’s counsel]: I, too, recall that being said by Your
       Honor. But even after having heard that said, when I
       received notice from [Father’s counsel that] he was
       withdrawing his petition, I called him to ascertain why he
       was doing that. I wanted to be certain of the reason for
       doing that. He has no place to—the children—well, strike
       that.

       The court: So is there room at his parents’ house for the
       children to live?

       [Father’s counsel]: Certainly, but it is in the Allentown
       School District.

       The court: So it would be a change in the school district.

                                   -8-
J-A04030-17



           [Father’s counsel]: And the marital home was listed for
           sale the day before the pre-trial conference, which gave us
           very little time to figure out the logistics. We thought the
           most prudent course of action would be to withdraw as per
           your statements.

           The court: So mother sells the house. We don’t know that
           she will remain in the same school district.

           [Father’s counsel]: That’s correct.

           The court: Everything is in the air here for this family. I
           think that, you know, your filing this action today
           opens the door for the court to modify [the] custody
           arrangement, and not to simply deny relocation. And
           you disagree with me on that?

           [Father’s counsel]: Agree completely.

           The court: You agree?

           [Father’s counsel]: Yes.

           The court: All right. Well, are we ready to proceed?

           [Mother’s counsel]: I am, Your Honor.

R.R. at 108a-09a (emphasis added).4 Mother’s counsel did not object.

        At the hearing, Mother testified that she had to move out of the

marital home because she could not refinance the mortgage due to an

insufficient income.      N.T. Hr’g, 7/8/16, at 44.   Mother testified that she

looked for a three-bedroom home in the Lehigh Valley, but could not afford

any.     Id. at 46.    She reiterated her intention to move in with Maternal

____________________________________________
4
    We cite to the reproduced record for the parties’ convenience.



                                           -9-
J-A04030-17


Grandmother in South Carolina. Mother opined that she found it difficult to

apply for jobs in either state because she did not know how or when the

court would rule on the relocation petition.        Id. at 164-65.   After the

hearing, Mother advised the court that the marital home was under an

agreement of sale.       Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail dated July 14,

2016, from Mother’s counsel to trial court and Father’s counsel).

       The trial court denied Mother’s petition to relocate on August 3, 2016.

The court also modified the custody arrangement such that Mother no longer

had primary physical custody; rather, the parties shared physical custody

equally.5 Among other things, the order stated that the Children’s residence

should not be changed to the extent it would “disrupt the custodial

schedule.” Final Order, 8/3/16, at 7.

       Mother timely appealed. She raises the following issues:

          Whether the trial court erred as a matter of law and
          abused its discretion when it denied Mother’s Request for
          Relocation where she met her burden of proving that the
          move is in the best interests of the children, where she
          met her burden of establishing the integrity of her motive
          in seeking relocation, and when proper consideration is
          given to the factors enumerated in 23 Pa.C.S.A. § 5337(h)
          and 23 Pa.C.S.A. § 5328(a)?

          Whether the trial court erred as a matter of law and
          abused its discretion when it modified a custody order
____________________________________________
5
  Mother would exercise physical custody over the Children from Sunday
through Tuesday, Father would exercise custody from Tuesday to Thursday,
and then the parties would alternate having custody from Thursday to
Sunday. Final Order, 8/3/16, at 2.



                                          - 10 -
J-A04030-17


          pursuant to 23 Pa.C.S.A. § 5338(a), despite [Father’s]
          withdrawal of his petition for modification prior to the trial
          proceeding; in the absence of another pending petition or
          another claim for modification by either party; where
          [Mother’s] relocation request was the only claim of either
          party before the court for disposition; and where
          [Mother’s] request for relocation was denied?

Mother’s Brief at 9.

       We summarize Mother’s arguments with respect to both of her issues:

Mother challenges the court’s weighing of the relocation factors under 23

Pa.C.S. § 5337(h)(1), (2), (3), (6), and (7), as well as the custody factors

under 23 Pa.C.S. § 5328(a)(3), (4), (9), (10), and (12). Mother’s Brief at

21.   Mother contends the court erred by concluding that she could have

obtained full-time employment and refinanced the mortgage, and thus would

not have needed to sell the parties’ former marital residence. She says that

the parties’ property settlement agreement required the sale of the home.6

The court, Mother claims, also improperly weighed her desire to live with her

fiancé because she omitted that fact from her notice of relocation.

       Mother also objects to the court’s decision to modify the Children’s

custody order even though Father withdrew his petition to modify custody on

the day of the hearing. She claims that she was unaware that modification

____________________________________________
6
  As noted above, the parties’ agreement did not unconditionally require the
sale of the marital residence. Rather, under the agreement, Mother was
required to assume sole responsibility for the mortgage within nine months.
Only if that condition was not met would the residence be listed for sale.
Settlement Agreement at 10.



                                          - 11 -
J-A04030-17


would still be at issue if relocation was denied and claims she lacked notice

of that issue.    Mother argues the court erred by sua sponte transferring

primary custody from Mother to a 50/50 shared custody.

     We begin by acknowledging our scope and standard of review in

custody cases:

           We review the trial court’s custody order for an abuse of
        discretion. We defer to the trial court’s factual findings
        that are supported by the record and its credibility
        determinations. However, we are not bound by the trial
        court’s deductions or inferences, nor are we constrained to
        adopt a finding that cannot be sustained with competent
        evidence. In sum, this Court will accept the trial court’s
        conclusion unless it is tantamount to legal error or
        unreasonable in light of the factual findings.

           The primary concern in any custody case is the best
        interests of the child. The best-interests standard, decided
        on a case-by-case basis, considers all factors which
        legitimately have an effect upon the child’s physical,
        intellectual, moral, and spiritual well-being.

D.K.D. v. A.L.C., 141 A.3d 566, 571-72 (Pa. Super. 2016) (quotation marks

and citations omitted), appeal denied, No. 330 WAL 2016, 2016 WL

6462545 (Pa. 2016).

     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 factors, giving weighted consideration to those
        factors which affect the safety of the child:




                                   - 12 -
J-A04030-17


          (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.


                                   - 13 -
J-A04030-17


23 Pa.C.S. § 5337(h).

       When considering a change of custody, the court must consider the

factors listed in Section 5338(a) of the Custody Act, 23 Pa.C.S. § 5338(a).

Mother challenges the court’s consideration of the following of these factors:

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

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

                                       *       *    *

          (9) Which party is more likely to maintain a loving, stable,
          consistent and nurturing relationship with the child
          adequate for the child’s emotional needs.

          (10) Which party is more likely to attend to the daily
          physical, emotional, developmental, educational and
          special needs of the child.

                                       *       *    *

          (12) Each party’s availability to care for the child or ability
          to make appropriate child-care arrangements.

23 Pa.C.S. § 5328(a)(3)-(4), (9)-(10), (12).

       After careful consideration of the record, the parties’ briefs, and the

decisions of the Honorable Michele A. Varricchio, we agree with the decision

to deny relocation and to change custody on the basis of the trial court’s

decisions. See Trial Ct. Op., 10/4/16, at 3-21;7 Trial Ct. Op., 8/8/16, at 8-
____________________________________________
7
  The opinion was timestamped as filed on September 30, 2016. The
docket, however, states the opinion was docketed on October 4, 2016, and
copies were mailed to counsel on October 3, 2016.


                                           - 14 -
J-A04030-17


17 (discussing, in detail, the relevant factors regarding relocation and shared

physical custody).8

       We hold that the trial court did not err in considering the custody issue

even though Father had withdrawn his petition to change the custody

arrangement. As the trial court held, the parties had notice that the custody

issue was before the court prior to the last-minute withdrawal of Father’s

petition, and both parties introduced evidence regarding the relevant

custody issues, as well as relocation, during the hearing. See Trial Ct. Op.,

10/4/16, at 8-10. We add that Mother’s counsel acquiesced to a potential

custody modification by not objecting to the court’s observation that the

parties’ custody arrangements were open to modification. Mother knew that

even if her relocation petition was denied, she still would have to move to a

new home because the marital home was under an agreement of sale, and,

depending on the location of her new residence, a new arrangement for

custody might be required.          See Ex. 1 to Trial Ct. Op., 10/4/16 (e-mail

regarding agreement of sale). We do not fault the trial court for electing to
____________________________________________
8
  Somewhat confusingly, the trial court stated that “At the time of the [July
8, 2016] relocation hearing, the marital home was under contract for sale.”
Trial Ct. Op., 10/4/16, at 5. The court then cited an e-mail dated July 14,
2016 — after the hearing — from Mother’s counsel that advised the court
that the home was under an agreement of sale. Id. The court’s error,
however, is immaterial, as the court made its first ruling on August 5, 2016,
after both the hearing and the e-mail. We also note that on page five of the
trial court’s October 4, 2016 opinion, and page eleven of the trial court’s
August 5, 2016 opinion, the citation to Hugo v. Hugo should be: 430 A.2d
1183 (Pa. Super. 1981).



                                          - 15 -
J-A04030-17


address the parties’ custodial arrangements because of the uncertainty

about where the Children would reside due to the court’s denial of Mother’s

petition to relocate. So long as “the parties had notice that custody would

be at issue, the court is permitted to modify custody without a pending

petition for modification.” C.A.J. v. D.S.M., 136 A.3d 504, 509 (Pa. Super.

2016).

      Given the trial court’s thorough consideration of the record and our

deferential standard of review regarding credibility and weighing of the

relevant factors, we cannot conclude, based on this cold record, that the trial

court’s findings are unreasonable.      See D.K.D., 141 A.3d at 571-72.

Accordingly, we affirm the order below. The parties are instructed to include

the attached trial court opinions in any filings referencing this Court’s

decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017




                                    - 16 -
                                                                                     Circulated 04/10/2017 04:40 PM




            IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                                   CIVIL DIVISION

A6e   AlliW Din Willafr
                 Plaintiff
                                                       )   No. 2014-FC-0538)


      vs.                                              )   CUSTODY

      F       WM" JR.,                                )    ASSIGNED TO:
                             Defendant                )    The Honorable Michele A. Varricchio


      Appearances:

              John J. Zettlemoyer, Jr., Esquire
                      For Plaintiff

              Daniel E. Taglioli, Esquire
                     For Defendant

                                                  ********

                                        MEMORANDUM OPINION

      MICHELE A. VARRICCHIO, Judge

              Mother informed Father in writing of her intention to move with the minor children,

      111111mraw age 7, and 41181111 W                           age 11, to Moore, South Carolina.

      Pursuant to Pa.R.C.P. 1915.17 and 23 Pa.C.S.A.§5337(c), on January 15, 2016 Mother served

      Father with notice of relocation within sixty days of her anticipated move, April 2, 2016. She

      provided information about the location and her proposed modified custody agreement. Her

      temporary new address at the home of Maternal Grandmother would be

      Moore, South Carolina 29369. She identified the school that the children will be attending as

               Elementary School in




                                                                                                       1
         Mother explained that she was moving because Maternal Grandmother, age 68, semi-

 retired with health issues, had moved to Moore, South Carolina, and is in need of Mother's

 physical assistance. She added that there will not be any remaining family for Mother in

 Pennsylvania. Most importantly, Mother expounded upon her inability to financially support

 herself in the Lehigh Valley as the result of two events that will occur in the fall of 2016.

        Pursuant to the Property Settlement Agreement signed by the parties and filed December

 21, 2015 in the divorce action, Mother is required to refinance the mortgage on her residence, the

marital home, in order to remove Father from mortgage liability. The Property Settlement

Agreement also provides that the term of alimony payments to Mother from Husband terminates

in December of 2016. As a consequence, Mother explained that she will have to sell the home,

move from the residence where she and the children have lived for four years. Mother's income

from her part-time employment is insufficient to qualify for refinancing of the mortgage. She

proposed that in South Carolina, she will be financially able to support the children where the

cost of living is less than in the Lehigh Valley. She purported that the lower cost of living will

create a stable financial environment for her to support the children.

       Her proposed custodial schedule is as follows. Mother and Father shall share legal

custody; sole physical custody shall be vested in Mother. Father shall exercise six uninterrupted

weeks of visitation in the summer beginning immediately after the close of school, during which

time he will celebrate his son's birthday, Memorial Day, and Father's Day with the Children.

Father will also have one week of custody over the Christmas break from school. In addition, he

will have either a week of custody over Spring Break or the majority of Thanksgiving break,

depending upon whether the year is 'even' or 'odd.'


                                                                                                     2
                                                                                          set forth
        Father objected to the relocation and to the modification of the custody schedule
                                                                      a Counter Affidavit
in the agreed order of March 26, 2015. On February 10, 2016, he filed
                                                                                 an Answer and
regarding relocation and a Petition for Modification.' In response, Mother filed
                                                                            as per the terms of
New Matter on March 16, 2016 requesting that the Court grant her relocation
                                                                              A custody
her notice. On April 5, 2016, Father filed his Answer to Mother's New Matter.
                                                                         trial; trial commenced
conference was held in May 2016 and thereafter the matter was listed for
                                                                         The interview was
July 8, 2016 during which an attempt was made to interview the Children.
                                                                               the Court's
cancelled; the Court found that both children exhibited substantial anxiety in
                                                                              was advised that
presence in response to preliminary attempts to discuss the family. The Court
                                                                                July 14, 2016,
the Children were also upset in anticipation of coming into court. On or before

both parties submitted briefs; the matter was taken under advisement. An
                                                                         Order for custody was

filed on August 2, 2016; this is the opinion in support of that order.
                                                                                           interest of
         Mother carries the burden of establishing that the relocation will serve the best

the Children as shown under the relocation factors. 23 Pa.C.S.A.     §   5337(i)(1). Mother also has

                                                                                   23 Pa.C.S.A.
the burden of establishing the integrity of her motives in seeking the relocation.
                                                                                                  §


                                                                                 seeking to prevent
5337(i)(2). Father has the burden of establishing the integrity of his motive in
                                                                                in setting forth her
the relocation. Id. Mother has not been straightforward in her notice to Father
                                                                             the testimony at trial
motives for the move. In addition to those reasons identified in the notice,
                                                                                   Mother
revealed that Mother had other motives for relocating not revealed in her writing.

planned to move to maternal grandmother's home and upon the termination
                                                                        of her alimony,

                                                                                who lives just ten
marry her fiancé. Her fiancé is a longtime friend and a South Carolina resident



  At the time of trial, Father withdrew his Petition to Modify.
                                                                                                         3
miles from maternal grandmother's home. Mother and witnesses on her behalf testified that the

close proximity of the Mother's proposed South Carolina home and that of Fiancé was not

planned; the Court found this to be disingenuous on Mother's part and discourteous to all

involved. 23 Pa.C.S.A.   §   5337(h)(8).

       Nevertheless, our focus in deciding this case is not the equity of the parties, but rather,

the best interests of the Children. The best interests of the Children are the paramount

consideration in a custody proceeding. A. V.   v.   S.T., 87 A.3d 818, 822 (Pa.Super. 2014); S.J.S.   v.


MJ.S., 76 A.3d 541, 548 (Pa.Super. 2013). The determination of best interests must be done on

a case -by -case basis, based upon a "consideration of all factors that legitimately affect the

children's physical, intellectual, moral and spiritual well-being." McAlister v. McAlister, 747

A.2d 390, 391 (Pa. Super. 2000). The case at hand involves the relocation of the Children.

Mother has the burden of establishing that the relocation will serve the best interest of the

Children. 23 Pa.C.S.A.   §   5337. For the reasons set forth below, Mother has not met her burden.

This Court rejects the proposed relocation. Mother is precluded from relocating to South

Carolina with the Children.

       In that Father filed a counter-affidavit regarding relocation which indicated that he

objects to the proposed relocation or to the modification of the custody order consistent with the

proposal for revised custody schedule, the court determined the terms and conditions of the terms

of custody and entered an order for shared physical custody. 23 Pa.C.S.A.       §   5337 (f)

        Facts

        Mother and Father were married January 21, 2003; they lived at Mother's          home,
                                                          2012. In 2012, they purchased the marital
41111111, Hellertown, Pennsylvania, until May
                                                                                                           4
                                                                              separation in
residence, 1111111.111111, in Emmaus, where the family resided together until
                                                                                reside at the
April 2014 when Father left the home. Mother and the Children have continued to
                                                                              divorce was
marital residence. The residence is currently under an agreement of sale. The

finalized in January 2016. During the marriage two children were born,        imp am,
born June 22, 2005, and        italla wilt           born October
                                                                  27, 2008.

       Mother is    AD                       age 39. She has been employed part-time as a Salon

Coordinator at                            in Bethlehem, Pennsylvania for several years. She works

                                                                               $1,000. She
Tuesday thru Saturday for 30 hours a week. Her monthly income is approximately

is a graduate   of Georgia Southern University with a bachelor's degree in Hotel and Restaurant
                                                                             employed in
Management with a minor in Business Administration. After graduation she was
                                                                             a home. She has
her field at Hilton Head Island, SC. She moved to Pennsylvania and purchased
                                                                               Loss Centers,
previously been employed in a beauty salon, Chili's Grill & Bar, and LA Weight
                                                                                         fund
before taking her current job. She has been actively involved in organizing a successful

raising event each year since maternal grandfather's death due to pancreatic cancer.

        Father is   Fe     V         Jr., age 39. Since separation in April 2014, Father has resided at

                       ,   Allentown, the home of retired paternal grandparents,   Fall,         Sr.,


and   mit wr.              The home is located in the Allentown School District. Father is a veteran,

                                                                       as a software
an Army Reservist, and was deployed to Iraq and Kosovo. He is employed

implementation engineer with        aninimir                        Pottsville, Pennsylvania since

 2007. He works 8 AM until 5 PM Monday thru Friday, and on Tuesday and
                                                                       Thursday he works

 from home.




                                                                                                          5
          The divorce complaint was filed by Mother on April 24, 2014; ten days after Father

vacated the marital residence. Since separation, Mother has been the primary caretaker of the

Children in the marital residence. In December 2014, Mother became engaged to           Cain
Ma-W               (Fiance)2 who has been her friend since high school; they reconnected on

Facebook in 2008. Mother and Fiancé have been in a relationship since spring of 2014. Around

that same time, the Children met him and, later, in the summer, they vacationed with him and his

two children.

          On or about this same time, Fiancé, who was residing in North Carolina at that time, had

decided to move to South Carolina to be closer to his own children who had relocated with their

mother, Fiancé's ex-wife, to Spartanburg, South Carolina. In December 2014, Mother decided to

move to South Carolina. Within a month, Fiancé applied for a job in the Spartanburg, South

Carolina area and he listed his North Carolina home for sale. After completing his South

Carolina educational certification necessary for employment in his field, Fiancé moved from

North Carolina in July 2015 to Duncan, South Carolina, approximately fifteen miles from his

children. He is employed as an Assistant Principal at             wow         School.

           In April 2015 after Mother's decision to move to South Carolina,

Maternal Grandmother, listed her Pennsylvania home for sale, as she, too, had decided to move

to South Carolina. In the fall of 2015, Maternal Grandmother purchased

Moore, South Carolina, the residence to which Mother seeks to relocate. The home is located

ten miles from the home of          CUM M1111111(Fiancé). Maternal Grandmother, age 68,
chose South Carolina allegedly due to its climate and its affordability. She has no relatives in



2   Mother's fiances last name is   111, there is no relation to Father.
                                                                                                     6
                                                                                          is a
South Carolina; the closest relative is two hours away in Georgia. Maternal Grandmother's
                                                                                       She is
cancer survivor, has COPD, arthritis, and carcinoma in her lungs that is in remission.

semi -retired and works on-line with a company out of Emmaus, Pennsylvania.

       In the meantime, the parties entered into a final custody agreement on March 26, 2015,

such that Mother has primary custody of the Children and that Father has periods
                                                                                 of partial

                                                                                 10 AM until
custody on alternating weekends Friday until Sunday and on alternating Saturdays
                                                                           Father has
3:00 PM and every Tuesday and Thursday 4:30 PM until 7:00 PM. Essentially,

contact with the Children no less than every two days.

       On December 21, 2015, an agreement was reached regarding the division of the marital
                                                                                   and that she
property. The parties agreed that Mother could keep possession of the marital home
                                                                              addition,
would remove Father's name from the mortgage no later than September 2016. In
                                                                                   payments
Father agreed to pay alimony, $714 monthly, until December 2016. After the alimony
                                                                                 to financially
cease at the end of 2016, Mother, who is only employed part-time, will be unable

support the marital residence as her home or refinance the mortgage. Mother
                                                                            has chosen to work

                                                                                   not look for
part time. She has sought employment at one location in the Lehigh Valley. She did

full time employment because she was going to relocate to South Carolina.

       In January 2016, the parties were divorced and thereafter, Mother provided
                                                                                  Father with

                                                                                  from
notice of her intention to move to Moore, South Carolina, approximately 670 miles
                                                                                    spent the
Allentown, or a ten hour drive. In March and in April 2016, Mother and the Children
                                                                                in contempt
weekend with Fiancé at his home in South Carolina. In May 2016, Fiancé was held
                                                                                 with his kids
in his own custody case, having spent the night with an unmarried woman, Mother,




                                                                                                  7
and the Children. At the hearing he testified that they were engaged since December 2014. The

date is set for December 2016, after the termination of alimony.

FURTHER FINDINGS AND DISCUSSION

         In deciding this matter, the Court must consider the factors for awarding custody, 23

Pa.C.S.A.    §   5328(a), and the relocation factors, 23 Pa.C.S.A.          §   5337(h), listed in Pennsylvania's

custody statute, 23 Pa.C.S.A. §§ 5321-40; see E.D.              v.   MP., 33 A.3d 73 (PA.Super.2011).

Where relocation will result in a change in the type of physical custody award, as with any award

of custody, the court must also apply the custody factors set forth in Section 5328(a) of the

Custody Statute. A.V       v.   S.T., 87 A.3d 818 (Pa.Super.2014). Section 5337 also alters the legal

standards that a trial court must consider when ruling on a request to relocate. Under prior

practice, trial courts considered relocation requests based exclusively upon the tripartite test set

forth in Gruber v. Gruber, 583 A.2d 434, 439 (Pa.Super. 1990). Under the Child Custody Act,

however, trial courts must consider the ten relocation factors listed in subsection 5337(h) as well

as the sixteen custody factors in section 5328. E.D., 33 A.3d at 79.3




3 There are statutory factors for awarding custody and for relocation that are not issues in this case. There were no
allegations that either parent withheld the Children from the other parent. The current custody schedule was agreed
upon and provides Father with frequent contact. There was no allegation of a pattern of conduct of either parent to
promote or thwart the relationship with the other parent. 23 Pa.C.S.A. § 5328(a)(1) 23 Pa.C.S.A. § 5337(h)(5). There
was no testimony of attempts by either party to turn the children against the other parent, 23 Pa.C.S.A. 5328(a)(8).
There have been no issues of child abuse or involvement of protective services. 23 Pa.C.S.A. § 5328(a)(2.1). The
Children are not being separated and there is no step or half siblings to be considered, 23 Pa.C.S.A. § 5328(a)(6).
The relocation factors and the custody factors consider the preference of the Children. 23 Pa.C.S.A. § 5337(h) (4)
and 23 Pa.C.S.A. § 5328(a)(7). While the Court believes that the Children are old enough to comprehend the
custody litigation, the Court chose not to interview them. The Children were visibly upset at an attempt to interview
them and were upset prior to coming into Court. The Court concluded that given their maturity it would not be in
their best interview to subject them to an interview. Neither parent insisted that they be interviewed. There was no
issue that with either party's availability to care for the child or ability to make appropriate child-care arrangements.
23 Pa.C.S.A. § 5328(a)(12). There is no history of drug or alcohol abuse of a party or member of a party's
household or mental or physical condition that impacts custody. 23 Pa.C.S.A. § 5328(a)(14) and (15).
                                                                                                                       8
       During the marriage, and after separation, and divorce, Mother has been the Children's

primary caretaker. 23 Pa.C.S.A.   §   5328(a)(3); 23 Pa.C.S.A.   §   5337(h)(1). Mother has

maintained a stable and steady environment for the growth and development of the Children.

She was the parent primarily responsible for attending to the Children's physical, educational,

and medical needs. She was the parent available to care for the Children in that Father was the

traditional breadwinner. Mother worked part-time during school hours. Father has worked full

time, two days of the week out of the home.

       Since separation, Father's interaction with the Children has changed in that he now is

responsible for performing parental duties that otherwise had been solely Mother's

responsibility. He feeds them, clothes them, addresses their educational needs, plays with them

and otherwise engages in their development. He has done so consistently and regularly. The

nature of the relationships between each child and each parent is unique. For instance, Mother

generally takes Taro dance classes. Mother testified that lardid not want Father to take
her to her dance classes, insinuating something negative between TO and Father. It was later

revealed that '11111 did not want Father to see her practice, so that when he attended the recital

he would be surprised.

       It cannot be denied that Mother has raised issues with Father's parental care regarding

meals, medication, and tardiness. The complaints taken individually or taken all together do not

rise to a level that one would reasonably conclude that Father is not a good parent. In fact,

Mother stated that she trusted Father as a parent. The issues seemed more about the parents'

separation, frustration with the circumstances and refusal to communicate with each other.

These issues ceased after communication between the parties. Historically, Mother has been the


                                                                                                     9
dominant parent in terms of parental responsibilities, such as education and medical

appointments. However, Father has demonstrated his ability to fulfill his parental

responsibilities. Finally, in so far as Mother has offered Father more than a month of

consecutive custody in her custody proposal, she cannot argue that Father is unable to be a

responsible parent for his Children.

       Both parties are committed parents. Father has been the traditional breadwinner and has

had less time available to care for the Children. Despite this, he has exercised frequent and

regular contact. Meanwhile, Mother has been the stable and steady caretaker, tending to

educational and medical needs. Father has been actively involved in the Children's lives on a

weekly basis. Both parents have demonstrated their ability to attend to the daily physical,

emotional, developmental, educational and special needs of the children.

23Pa.C.S.A.§5328(a)(10). Moreover, both parents have equally established that they are able to

maintain a loving, consistent, and nurturing relationship with the children adequate for the

children's emotional needs. 23 Pa.C.S.A.     §   5328(a)(9).

        Stability is also an element of this factor. Both parents are at a crossroads as far as

housing. Admittedly, Father has been strapped with child support payments and alimony

payments. The alimony terminates in December 2016. Father has expressed his desire to move

from paternal grandparents home. The home is located in the Allentown School District which

falls short of the quality of education at other suburban school districts. A change in residence is

in Father's future. Similarly, as a consequence of the termination of alimony and Mother's

failure to find full time employment, Mother and Children will be vacating the residence where

the Children have resided for the past four years. Other than one application for employment in


                                                                                                  10
the Lehigh Valley, Mother did not look for work because she was moving to South Carolina.

According to Mother, the proposed stay at the maternal grandmother's home is just temporary

until she is married and able to relocate with her future husband. In conclusion, at this time, it

appears that Father is more stable in his circumstances; however, this is but one factor.

        In addition, the court must consider the need for stability and continuity in the Children's

education, family life, and community life. 23 Pa.C.S.A.     §   5328(a)(4). This Court has long

recognized that the removal of a young child from his environment is a factor which bears upon

its emotional well-being." Hugo   v.   Hugo, 420 A.2d 1183 (Pa.Super. 1981). A disruption of an

established pattern of care and emotional bonds is detrimental to a child. Unfortunately, in this

case, Mother has already disrupted any established pattern. She failed to seek employment

sufficient to maintain the marital residence. Regardless of the court's decision, the Children will

have to move. It is clear there will be a substantial disruption to Children's established routines

and family life. It is unknown to the Court where the Children will attend school this fall.

       The Children are both excellent students. They do not attend the same school.        al,
age 7, has attended                              School for two years. This fall, she will be in

second grade. She has participated in dance for four years. She currently     attends
gymnastics and intends to participate in the fall. She has established relationships and routines

as a result of the time that she has been involved in school, dance, and gymnastics.     AS has
attended                         School for the past four years. In the, fall he will be in the sixth

grade. He achieved all A's and is Satisfactory to Excellent in all subject matters. He attended

kindergarten and first grade in 1111111MI Elementary School.            1v1    has been at his school




                                                                                                        11
                                                                                            as
for several years and has developed relationships there and familiarity in his neighborhood

well.

         A consideration in a relocation case is the age, developmental stage, needs of the child

                                                                                        emotional
and the likely impact the relocation will have on the child's physical, educational and
                                                                                           5337(h)(2).
development, taking into consideration any special needs of the child. 23 Pa.C.S.A.
                                                                                       §


                                                                                    Children to
The stability and continuity in education and environment are important. Relocating
                                                                                  family, and
a new school, away from Father, paternal grandparents, paternal aunt and extended

friends would be a significant disruption in their routine.
                                                                                           stay at
         Both parents are actively involved with the Children. Mother has been a part-time

home caretaker for the Children, Father exercises a custody schedule that allows
                                                                                 him to be

involved frequently during the week.      There is no evidence that one parent's relationship with

                                                                                        than the
the children is by nature better, more extensive, of a better quality, or more involved
                                                                                    been their
other parent. The Children have a very close relationship with their Mother who has
                                                                                  23 Pa.C.S.A.
primary custodian. Equivalently, the Children have an attachment to their Father.

§   5337(h)(1).

         The same could be said of the extended family. The Children have relationships
                                                                                        with

their grandparents. The parents resided with maternal grandparents for a period
                                                                                of time prior to

                                                                                  Children
moving into the marital residence. Maternal Grandmother lived with Mother and the
                                                                              to South
during the summer of 2015. The Children have seen less of her since she moved

Carolina, but they have visited several times since. The Children stay at the home
                                                                                   of Paternal

                                                                                   for the
Grandparents during Father's periods of custody. Paternal aunt provides child care




                                                                                                     12
Children on behalf of Mother. In addition, the Children have developed a relationship with

Fiancé and his children. 23 Pa.C.S.A.      §   5328(a)(5).

       Pursuant to 23 Pa.C.S.A.    §   5337(h)(7) the court must evaluate whether the relocation will

enhance the general quality of life for the children, including, but not limited to, financial or

emotional benefit or educational opportunity. Mother has not obtained employment in South

Carolina. The qualities of the schools are the similar to those that the Children currently attend.

Here, the benefits of the move to Children are no greater than remaining in Pennsylvania. There

may be excellent schools in South Carolina, but there is no evidence that any of the schools

Children have attended are sub -par.

       The Children's general quality of life will not be enhanced, largely due to the lack of

proximity of the residences of their parents. 23 Pa.C.S.A.    §   5328(a)(11). Previously, the parties

lived in the same County and regular contact among the parents and Children were achieved

easily. Father has regular physical contact with the Children at least every two days; this is

impossible if the children live hours away. The relationship as it is now is extremely difficult to

preserve over such a distance, especially given the tender age of the Children. Communication

via Skype can preserve face time and children are said to be resilient and can adapt. However,

computers cannot recreate cuddling with a child and a storybook or tucking the child into bed.

23 Pa.C.S.A.   §   5337(h)(3).

       The distance is substantial, which would prevent frequent visits, and funding travel may

be cost -prohibitive. Father's physical custody of the Children would be reduced, unfortunately,

to three times per year due to the distance and expense. The only means of frequent

communication would be via phone or computer. Although Mother proposed a substitute


                                                                                                      13
custody arrangement, summers with Father would not adequately substitute for the consistent

weekly contact between Father and Children. The relocation to South Carolina would not

adequately foster an ongoing relationship between Children and Father. The Children would be
                                                                                                 life
deprived of substantial periods of time with Father. There is a limited time period in a child's
                                                                                              to
when the child should be forming relationships with both parents. The distance is prohibitive

maintaining the relationship.

       Next, the court must evaluate 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. 23 Pa.C.S.A.    §   5337(h)(6) Mother's proposed relocation is

without an immediate financial plan. She explained that once she is married there will be a dual

income household able to provide for a home. She explained her fiancé will financially support
                                                                                        She is
her, and that the kids will be able to do more because of more income in the household.
                                                                                           for
confident that she is able to find employment in South Carolina. However, she never looked

this type of work in the Lehigh Valley in order to sustain herself for the sake of the stability
                                                                                                 of

the family here in the Lehigh Valley. She made an inadequate attempt to obtain full time
                                                                                               to
employment in order to retain the marital residence. Were this Court to grant Mother's request
                                                                                          thrown
relocate and then Mother and fiancé end their relationship, the Children's lives would be
                                                                                      Court
into complete turmoil, especially because Mother has no means to support herself. The
                                                                                               with
will not risk putting Children into such a situation, especially when there are viable options

Father. See S.JS., 76 A.3d at 552.

        Without a doubt, Mother's relocation is to her emotional benefit. She is engaged to be
                                                                                            looks
married to a longtime friend. Her own mother has relocated to that area. It is clear Mother

                                                                                                      14
                                                                                     give her
forward to starting anew. Mother described that she wanted to move so that she could
                                                                                         and
children a family environment where the parents share the same morals and values, drives
                                                                                       that her
ambitions, to help each other and to create that family for her Children. She believes

own happiness will trickle down to the Children. Her plans, however, overlook
                                                                              a significant

figure in the Children's lives -their father.
                                                                                     described
       The Court does not doubt that there have been difficult times for Mother. She

                                                                               There has never
multiple occasions of verbal abuse, sometimes in the presence of the Children.
                                                                                        and
been a risk of harm to the children. Each party is adequately fit to provide safeguards
                                                                                or member of
supervision of the Children. Abuse, present and past abuse committed by a party

                                                          5328(a)(2), 23 Pa.C.S.A.   §   5337(h)(9). There
the party's household, is a factor. 23 Pa.C.S.A.      §

                                                                             and two instances
was credible testimony of Father using inappropriate language towards Mother

of physical confrontation. This event occurred due to the stress and circumstances of
                                                                                      the

                                                                                    There is no
dissolution of the family and the heightened conflict that result from frustration.

excuse for such behavior; however, it has not been pervasive throughout.
                                                                         There is no continued

                                                                       the parents are intelligent
risk of harm to Mother. There is conflict between the parents; however
                                                                             arrangements. Despite
and self-respecting such that the conflict has not interfered with custodial

the tension and strain, each parent is able to remain focused on the best interests
                                                                                    of the Children

and demonstrate a willingness to cooperate with each other. 23 Pa.C.S.A.             §   5328(a)(13).

        Finally, the court must also evaluate the reasons and motivations and integrity
                                                                                        of Father

who opposes the relocation. 23 Pa.C.S.A.        §   5337(h)(8), 23. Pa.C.S.A.   §   5337(i)(2). The Court

                                                                            relationship with the
concludes that Father's motives for opposing relocation are to preserve his

Children as well as his family's relationship with the Children.

                                                                                                             15
CONCLUSION

          In conclusion, Mother said she was relocating because she cannot maintain the current

home and the cost of living in Emmaus, Pennsylvania, however, she does not have employment

or a source of income in South Carolina. She is interested in work in the non-profit sector and

hotel or restaurant work, but only in South Carolina. She is relocating to assist maternal

grandmother who is in need of physical support due to her health issues, but she doesn't explain

who will help Maternal Grandmother after Mother relocates with her future husband. Mother

wanted to relocate during the school year to a situation that lacks permanency and is subject to

change.

          In S.J.S.   v.   MJS., Mother's relocation with paramour was denied although Mother was
previously primary caretaker. 76 A.3d at 543. Mother (S.J.S.) wished to move with children

seven -and -a -half hours from Father and her previous home. Id. at 546. The Trial Court

examined the factors and appropriately ruled on both parental custody and mother's relocation

request. Id. at 549. The Trial Court found, and the Superior Court affirmed, denying Mother's

request to relocate, when the benefits to children were not exclusive to the new location was

appropriate. Id. at 554. Mother's request to relocate centered on accommodating Mother's

paramour's desire to move. Id. at 553. Mother also argued there were excellent schools in the

proposed relocation area. Id. at 551.

          All the factors were examined in S.J.S., but the Court found that Mother's wish to

relocate did not outweigh the detrimental effect on Father's time and relationship with children

especially considering that Mother's reasons for the relocation lacked integrity. Id. at 553. The

Trial Court emphasized the stability of the children's relationships in their current area and found


                                                                                                    16
both parents were capable of being fit and caring. Id. at 552. With only a seven-and -a-half-hour

drive separating the current location to the potential relocation, the Trial Court found no

adequate partial custody arrangements existed that would preserve the relationship of children

with their father. Id. at 554.


It "is the fact-finder's sole prerogative to pass on the credibility of the witnesses and the weight

to be given to their testimony." Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super. 2014)

(quoting Commonwealth      v.    Whitlock, 69 A.3d 635, 637 (Pa.Super. 2013)). This Court has found

Father to be credible and earnest. This Court concludes Mother may steer the ship, but her

actions come across as calculating. Father has been involved weekly with Children. If the

Children moved to South Carolina, the Children would be missing the opportunity to develop a

meaningful relationship with Father and Father would not have the opportunity to share in love

and rearing of the Children. Mother's proposed custody arrangement would eliminate the weekly

contact that has been critical for providing the Children with the opportunity to bond with Father

and his extended family.


        A new life in South Carolina is not worth the expense to the Children by uprooting them

from Father, school, friends, and extended family while creating instability in their lives. The

benefits to the Children are not exclusive to South Carolina and do not outweigh the detrimental

effect on Father's time and relationship with Children. Mother has not met her burden that

relocation is in Children's best interests.




Date: August 5, 2016
                                                         Michele A. Varricchio, J.
                                                                                                       17
                                                                               Circulated 04/10/2017 04:40 PM




      IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                             CIVIL DIVISION


A. D. W.,                                             No. 2014-FC-0538
                        Plaintiff/Appellant

vs.                                                   CUSTODY

F. W., JR.,                                           ASSIGNED TO:
                        Defendant/Appellee            The Honorable Michele A. Varricchio                  .



                                                                                               'Ns
                                                                                               et,
                                  Pa. R.A.P. 1925(a) STATEMENT

         AND NOW, this      [th day of September, 2016, the undersigned enters the finQ               471


statement pursuant to Pennsylvania Rules of Appellate Procedure 1925(a):
                                                                                        t?;          M
         On August 1, 2016, this Court entered a Final Custody Order denying                         C:1
                                                                                  ci S9
                                                                                       A*
                                                                      June 222005. ndt,0
Appellant/Mother's request to relocate with the children, M.C.W. born
                                                                  and modifying its previous
T.P.W. born October 27, 2008, hereinafter referred to as children
                                                                  physical custody of the
Custody Order of March 26, 2015, to give Mother and Father shared
                                                                           filed her Notice
children. On August 25, 2016, Appellant A.D.W. (Mother), contemporaneously
                                                                             August
of Appeal to the Superior Court Docket Number 2792 EDA 2016 from the Court's
                                                                                              1,


Final Custody Order and a Motion for Reconsideration ofFinal
                                                             Custody Order pursuant to

                                                                                           filed
Pa.R.C.P. 1930.2.      Due to the Children's Fast Track designation, Mother simultaneously

                                                                 to Pa.R.A.P. 1925(b) with
her Concise Statement of Errors Complained of on Appeal Pursuant

her Notice of Appeal    .   This Court dismissed Mother's Motion for Reconsideration as moot by

Order of Court dated September 22, 2016.
                                                                                 Mother raises
          In her Concise Statement of Matters of Errors Complained of on Appeal,

 twelve issues from which the following is taken verbatim:

               The Honorable Court committed an error of law and abuse of
                                                                             discretion in
          1.
                                                                                to a new
               denying Mother's request for permission to relocate the children
          residence in South Carolina.
       2. The Honorable Court committed an error of law and abuse of discretion in
          concluding that it would not be in the children's best interest to be in their
           Mother's primary physical custody.
       3. The Honorable Court's decision awarding shared physical custody to Father
           was against the weight of the evidence, and constituted an error of law and
           abuse of discretion.
       4. The Honorable Court was in error in that it granted a modification of the
           custody order pursuant to 23 Pa.C.S.A. §5337 (f), where the Plaintiff's request
           for relocation was denied.
       5. The Honorable Court was in error in that it granted a modification of the
           custody order, despite Defendant's withdrawal of his Petition for Modification
           during the trial and in the absence of another pending Petition or other claim
           for modification.
       6. The Honorable Court was in error in that it modified the custody order after
           denying Plaintiff's request for permission to relocate the children, where
           Plaintiff's relocation request was the only claim of either party before the
           court for disposition.
       7. The Honorable Court was in error in that it inadequately weighed the factors
           under 23 Pa.C.S.A. §5328(a), in its determination that the children's best
           interests required an award for shared physical custody.
       8. The Honorable Court was in error in that it inadequately weighed the factors
           under 23 Pa. C.S.A. §5328(a)(3), (9), (10), and (12) in its determination that
           the children's best interests required an award for shared physical custody.
       9. The Honorable Court was in error in that it inadequately weighed Mother's
           role as primary caretaker of the children in its determination that the
           children's best interests required an award for shared physical custody.
       10. The Honorable Court was in error in that it improperly concluded that the
           Father is more stable in his circumstances, because the Mother intended to
           vacate the former marital residence and it was "unknown to the court where
           the Children will attend school this fall."
       11. Where the Father had also indicated an intention to move to a new residence
           in the near future the Honorable Court erred in finding that Father is the more
           stable parent with respect to his residence.
       12. Where the court had just denied the planned relocation of Mother, the
           Honorable Court erred in weighing against Mother the immediate uncertainty
           with respect to the children's schooling as an indication of Mother's
           instability supporting the court's modification of Mother's primary physical
           custody to an award of shared physical custody.

Appellant/Mother's Concise Statement of Errors Complained of on Appeal, ¶1-12. The Court

adequately addressed Mother's first two contentions of error and the procedural and factual

background of the case in the August 5, 2016, Memorandum Opinion entered in support of the
                                                2
August     1,   2016 Final Custody Order and we incorporate the August 5th Opinion herein.

Additionally, credibility of the parties played a role in this Court's decision to
                                                                                   deny the

                                                                              not find Mother
relocation; some witnesses were more credible than others. Here the Court did

to be a credible witness about the integrity   of her motives in pursuing the relocation.

Standard of Review

         Appellate Courts review custody orders using a gross abuse of discretion standard.

Ottolini   v.   Barrett, 954 A.2d 610, 612 (Pa. Super. 2008). As set forth by the Pennsylvania

Supreme Court the standard of review of "an appellate court reviewing a child
                                                                              custody order, is

                                                                                       made by the
of the broadest type; the appellate court is not bound by the deductions or inferences
                                                                                          has no
trial court from its findings of fact, nor must the reviewing court accept a finding that

competent evidence to support it." Moore       v.   Moore, 634 A.2d 163, 168 (Pa. 1993)(intemal

citations). The Court continued,

         [h]owever this broad scope of review does not vest in the reviewing Court the
         duty or the privilege of making its own independent determination. Thus an
         appellate court is empowered to determine whether the trial court's
         incontrovertible factual findings support its factual conclusions, but it may not
         interfere with those conclusions unless they are unreasonable in view of the trial
         court's factual findings; and thus, represent a gross abuse of discretion.

Moore, 634 A.2d at 168 (internal citations omitted).           "In addition, with regards to issues of

                                                                                       viewed and
credibility and weight of the evidence, we must defer to the presiding trial judge who

assessed the witnesses first-hand."            V.B.   v.   J.E.B., 55 A.3d 1193, 1197 (Pa. Super.

                                                                                     overrides or
2012)(citations omitted). Moreover, "[i]f a trial court, in reaching its conclusion,
                                                                              reaches a
misapplies the law or exercises judgment which is manifestly unreasonable, or
                                                                                         evidence of
conclusion that is the result of partiality, prejudice, bias or ill will as shown by the
                                                                                                 Bonawits,
record, then discretion is abused." Ottolini, 954 A.2d at 612, relying on Bonawits
                                                                                            v.


                                                       3
                                                             review of custody cases is "to
907 A.2d 611, 614 (Pa. Super. 2006). The close comprehensive
                                                               Bertin, Pennsylvania Child Custody:
ensure that the best interests of the child are being served."

Law, Practice, and Procedure (2016 ed.); Mahoney           v.   Mahoney, 51 A.2d 694 (Pa. 1986).

          Award of Shared Physical Custody
                                                                          to award shared physical
          Mother's third contention of error is that the Court's decision
                                                          and constituted an error of law and
custody to Father was against the weight of the evidence,

abuse of discretion. It is well settled that:
                                                                              court may modify a
          Section 5338 of the Act provides that, upon petition, a trial
                                                                          23 Pa.C.S. §5338. The
          custody order if it serves the best interests of the child.
                                                                         considers all factors that
          best[ -]interests standard, decided on a case -by -case basis,
                                                                                       moral, and
          legitimately have an effect upon the child's physical, intellectual,
                                                                         (Pa. Super. 2006) (citing
          spiritual well-being. Saintz v. Rinker, 902 A.2d 509, 512
          Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).
                                                                                   change
R.S. v. T.T., 113   A.3d 1254, 1258 (Pa. Super. 2015). When considering a possible
                                                           trial courts that,
in custody, the Pennsylvania Superior Court has admonished
                                                                             on the child of the
          it is incumbent on the court to fully discuss the possible effect
                                                                                573, 662 A.2d
          proposed transfer of custody." E.A.L. v. L.J.W., 443 Pa.Super.
          1109, 1117 (1995) (quotation and citation omitted). See
                                                                       also Masser v. Miller,
                                                                            865 A.2d 931, 937
          913 A.2d 912, 921 (Pa.Super.2006) (quoting Johns v.
                                                                    Cioci,
                                                                              of continuity and
          (Pa.Super.2004)) ("The court must give attention to the benefits
          stability in custody arrangements and to the possibility
                                                                        of harm arising from
          disruption of longstanding patterns of care.").

R.S. v.   TT,   113 A.2d at 1261. When considering an award            of shared physical custody the Court

 is to consider:

                                                                           court must consider
           [i]n determining whether to award shared [ ] custody, the trial
                                                                           capable of making
           the following factors: (1) whether both parents are fit,
                                                                        provide love and care
           reasonable child rearing decisions, and willing and able to
                                                                               desire for active
           for their children; (2) whether both parents evidence a continuing
                                                                              both parents as a
           involvement in the child's life; (3) whether the child recognizes
           source of security and love; and (4) whether a minimal degree
                                                                           of cooperation
           between the parents is possible.

                                                       4
R.S.   v.   TT,   113 A.3d at 1260 relying on Yates   v.   Yates, 963 A.2d 535, 542 (Pa. Super. 2008).

                                                                          Mother and Father. They
            Here, both children were born into an intact marriage between
                                                             in one home until April of 2014.
resided with both parents and were cared for by both parents
                                                                in the home and Father arranged
Mother worked part time so that she could care for the children
                                                        to be available for the children. After
his work schedule to work two days out of the home
                                                     to reside at the marital residence with
Father separated from Mother, the children continued

Mother. The Court entered the prior custody order
                                                  by agreement before reaching a custody trial

on March 26, 2015.
                                                                         continued to see both
            Pursuant to the March 26, 2015, Order of Court, the children
                                                         Though the children visit with Father
Mother and Father with no more than two days separation.

for two nights during the school week, the children
                                                    have had the advantage of being able to sleep

 in their normal beds at the marital residence for at least
                                                            five nights a week since the parties'

                                                         for the children. At the time of the
 separation, which has created stability and consistency
                                                         for sale. Necessarily, this sale will
 relocation hearing, the marital home was under contract
                                                           Mother's attorney contacted the Court
 disrupt the children's routine and their sense of "home."
                                                               that the marital residence was under
 and Father's attorney via email on July 14, 2016, to disclose
                                                          also asked me to request that the
 agreement of sale, and he stated that, "She {Mother] has

 children not be told of this just yet, again because of
                                                         the pending case. She told me that she

 intends to tell Mr.    WO, today, and ask him not to tell the children just yet." This statement
                                                         to move will be upsetting to the
 gives rise to an inference that knowing they would have
                                                               that the removal of a young child
 children. See, Ex.1. Pennsylvania Court's has long recognized
                                                        emotional well-being. Hugo            v.   Hugo, 420
  from his environment is a factor which bears upon his

  A.2d 1183 (Pa.Super. 1981).
                                                           5
       As the Pennsylvania Superior Court stated in, D.K.D.       v.   A.L.C., 141 A.3d 566 (Pa.


Super. 2016), "the evidence   of record supports the ... finding that Mother neglected to make   a

                                                               or, ....maintain the marital
sincere unencumbered effort to find employment in Pennsylvania

residence to avoid removing L.D. from his stable environment and
                                                                 steady routine." Id. at 577. In

                                                           the USA JOBS website,
D.K.D., the Mother had filled out 800 applications through
                                                                   Pennsylvania. Id. at 577.
predominantly in Florida, but had filled out some applications for

Here, the testimony at trial was that Mother had only applied
                                                              for one full time position in

                                                          South Carolina as early as
Pennsylvania and that she had been committed to moving to
                                                                                   in
December of 2014.       Based upon Mother's failure to pursue full time employment
                                                                      final alimony payment in
Pennsylvania so that she could afford the marital residence after the

December of 2016, the marital residence had to be sold regardless
                                                                  of whether or not this Court

                                                                        certain disruption to the
granted Mother's relocation petition and request for modification. This
                                                                     children's best interest to
children's stable environment, prompted the Court in considering the

evaluate Father's desire to take a larger role in raising his children
                                                                       than he had been previously

                                                              Court considered all the
provided with under the March 26, 2015 Custody agreement. The

evidence and found that the possibility of harm arising from disruption
                                                                        of longstanding patterns

                                                                           care since April of
of care was negligible, as the children have only been in Mother's primary

2014, and Father still sees the children and performs paternal duties
                                                                      two weeknights a week and

                                                                 children will be forced to
 every other weekend. Moreover, because of Mother's actions, the
                                                                           Order and they will
 adjust to a new home with Mother, regardless of any change to the Custody

 benefit from overnights with Father during the week that will occur
                                                                     in their paternal grandparents

 home, where they have been used to staying with Father since
                                                              April of 2014. The shared

                                                                        and stability in custody
 physical custody arrangement will benefit the children with continuity
                                                 6
arrangements and their surroundings.

         The United States Supreme Court has long held that "[i]t is cardinal with us that the

custody, care and nurture of the child reside first in the parents, whose primary function and

freedom include preparation for obligations the state can neither supply nor hinder." Prince         v.



Massachussetts, 321 U.S. 158, 167 (Pa. 1944). While, "[T]he Act of November 23, 2010 is, in a

sense, a radical departure: the Statute dispenses with any reference to public policy that it is in

the best interests of children to permit them to maintain a meaningful relationship with both

parents," both parents active involvement in their children's lives remains the state's goal. 17

West's Pa. Prac., Family Law §28:2 (7th ed.); 23 Pa. C.S.A. §5328(a)(1). For instance, in child

support matters, the Courts have sought to provide the child with at least the, "legal and financial

benefits of a parental relationship," but have stated that, "we hope that [the husband's] heart will

follow his money." K.E.M.    v.   P.C.S., 38 A.3d 798, 809 (Pa. 2012)(internal citations omitted).

         Here, Mother's sale of the marital residence and uncertainty of her future living

arrangements has already disrupted the children's established pattern, and the shared physical

custody award will minimize the harm to the children.               The evidence adduced at trial

demonstrated that both parents are fit, capable of making reasonable child rearing decisions, and

willing and able to provide love and care for their children. Both parents have expressed a

continuing desire for active involvement in their children's lives and have supported their words

with their actions of: feeding and clothing their children, addressing their educational needs,

playing with them, taking them to activities and attending events important to the children, such

as   T.W.'s dance recital. The children recognize both parents as a source of security and love.

There has been conflict between the parents, however they have demonstrated the ability to keep

the conflict from interfering with the custody arrangements and have demonstrated a willingness
                                                    7
to cooperate with each other. Thus, the Court believes that the record
                                                                       demonstrates that all four

                                                                            been met such that
of the factors regarding an award of shared legal and physical custody have
                                                                      that the Court's award of
shared physical custody of the children is in their best interest and

shard physical custody was not against the weight of the evidence nor
                                                                      constituted an error of law

or abuse of discretion. See R.S.   v.   TT,   113 A.3d at 1261.

        Modifying the Custody Order after Denying Mother's Request to Relocate
                                                                                          decision
       Mother's fourth, fifth, and sixth contentions of errors all challenge this Court's
                                                                     custody after denying
to Modify the existing Custody Order to grant Father shared physical
                                                                             Petition to Modify
Mother's request to relocate to South Carolina. Father chose to withdraw his
                                                                              he had not yet
the Custody Order at the time of the relocation hearing in this case, because
                                                                           discussed the
secured a residence in the children's current school district. The parties
                                                                                    See Notes of
withdrawal of Father's petition to modify on the record before the trial commenced.
                                                                              "Everything is in
Testimony, N.T., 7/8/2016, at 7:13-10:19. The Court clearly informed counsel,
                                                                                    opens the door
the air here for this family. I think that, you know, your filing this action today
                                                                                     See N.T.,
for the Court to modify the custody arrangement, and not to simply deny relocation."
                                                                             that Mother's
7/8/2016, at 10:12-16. Thus, both parties were aware of the Court's position
                                                                                   filed March 16,
Answer and New Matter to Defendant's Petition for Modification of Custody
                                                                            opened the door to
2016, required a Modification of the March 26, 2015 Custody Order, and thus

a new Custody Order. Both parties proceeded to present evidence
                                                                of not just the ten relocation

                                                                              contained in 23
factors contained at 23 Pa.C.S.A. §5337, but also the sixteen custody factors

                5328(a). Thus, the parties' due process rights were satisfied as the parties
                                                                                             had
Pa.C.S.A.   §

                                                                                to Modify Custody
adequate notice to prepare for a full custody hearing, as the Father's Petition
                                                                              to litigate the custody
was not withdrawn until the time of the trial and a full and fair opportunity
                                                      8
                                                                     the Court was aware that the
issues at the trial. This case also involved evolving circumstances,

marital residence needed to be sold by September at the time
                                                             of trial and had been informed by

                                                               the time the Court issued the Final
Mother's attorney that the home was under contract of sale, at
                                                             necessarily have to move
Custody Order on August 1, 2016, and that the children would

somewhere.
                                                                  absence of a petition for
       Generally, the Court may not modify a custody order in the
                                                                                   a request for
modification. Seger   v.   Seger, 545 A.2d 376 (1988). However, any case involving

                                                                  because in the event that the
relocation, necessarily involves consideration of custody issues,
                                                            following , 23 Pa.C.S.A.
Court grants a proposed relocation request, the Court must,
                                                            a new one. Once the Court has been
§5337(g)(4), modify the existing custody order or establish
                                                        whether through the initial filing of a
summoned to examine the best interests of the children,
                                                               for Relocation, the Court owes an
custody complaint, a petition to modify custody, or a Petition
                                                                  minimize any harm to children.
obligation to the children to prioritize their best interests and

This is not a simple relocation case, where   if the relocation is denied, the parties can continue

without change to their existing custody order. The consequence
                                                                of any denial of a proposed

                                                                  will forego their custody rights
relocation creates uncertainty, as it is unknown whether a parent

 and move to the proposed relocation without their children.
                                                             Mother informed the Court that she

                                                              children's current school district.
 could not on her current salary afford to rent a home in the
                                                           attend school in the few remaining
 This resulted in ambiguity as to where the children would
                                                                2016, Final Custody Order. Here, the
 weeks of summer following the issuance of the August
                                                           1,


                                                            Court found it expeditious to
 Mother's income and future residence were unknown, and the

 modify the Custody Order to create stability for the children.
                                                                              for this Court to enter a
        If the Pennsylvania Superior Court finds that it was inappropriate
                                                    9
final custody order, where Father withdrew his Petition to Modify, this Court requests that its

August 1, 2016, Order of Court, be upheld as a temporary modification of the custody order
                                                                                     in
while Mother finds her new employment and new housing, and the children begin school

Lehigh County. See Choplosky    v.    Choplosky, 584 A.2d 340, 343 (Pa. Super. 1990)(A trial court

may temporarily modify custody order despite lack of petition to modify, where temporary

modification of custody will preserve the well being of children involved while parties prepared

to resolve more permanently the question of where or with whom children should remain.).

       Consideration of all of the Custody Factors

       Mother's seventh contention of error is that this Court adequately failed to consider the

custody factors under 23 Pa. C.S.A. §5328(a), in making the determination that the children's

best interests required an award for shared physical custody. From the outset, we observe that
                                                                                           case
Mother is correct that the new Child Custody Act, 23 Pa. C.S. §§ 5321-5340, applies to the

at hand because Mother filed her Complaint for Custody after January 24, 2011, the effective

date of the new law. See E.D.    v.   MP., 33 A.3d 73 (Pa. Super. 2011). Under this Act, when a

party files for custody, the Court is to determine in whose custody the best interests of the child

would be served using the factors found in 23 Pa. C.S.A. §5328. Both parties have the burden of

proof by a preponderance of the evidence, as in custody disputes between natural parents, "the

parents are viewed as having an equal interest in the child's welfare and thus the evidentiary

scale is evenly balanced at the outset." Bertin, PennysIvania Child Custody §7:1; Sawako           v.


Sawko, 625 A.2d 692 (Pa. 1993); 23 Pa.C.S.A. §5327 (a). However, in the custody relocation

context, the party seeking to relocate has the burden of establishing that relocating is in
                                                                                            her

children's best interest and each party has the burden of establishing the integrity of their

motives in seeking or opposing the relocation and modification. See 23 Pa.C.S.A. §5337(i).
                                                   10
         The paramount concern in any child custody case is the best interest of the child.

Durning       v.   Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011).     Determining the best

                                                                                      may
interests of the child requires a "case-by case assessment of all of the factors that

legitimately affect the 'physical, intellectual, moral, and spiritual well-being' of the child."

Landis   v.   Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005). Title 23 Pa.C.S.A. §5328 sets forth

fifteen (15) specific factors that the Court is required to determine in deciding the best interest of

the children in a custody proceeding "giving weighted consideration to those factors which affect

the safety of the child." These factors include: (1) which party is more likely to encourage and

permit frequent and continuing contact between the children and the other parent; (2) present and

past abuse committed by a parent or member of the parent's household; (2.1) the information set

forth in section 5329.1(a)(relating to consideration of child abuse and involvement with

protective services); (3) the parental duties performed by each parent on behalf of the children;

(4) the need for stability in the children's education, family and community life; (5)
                                                                                       the

availability of extended family; (6) the children's sibling relationships; (7) the well -reasoned

preference of the children; (8) the attempts of a parent to turn the child against the other parent,

except in cases of domestic violence where reasonable safety measures are necessary to protect

the child from harm; (9) which party is more likely to maintain a loving, stable, consistent and

nurturing relationship with the children adequate for their emotional needs; (10) which parent is

more likely to attend to the daily physical, emotional, developmental, educational and special

needs of the children; (11) the proximity of the residences of the parents; (12) each parent's

availability to care for the children or ability to make appropriate child-care arrangements; (13)

the level of conflict between the parents and the willingness or ability of the parents to cooperate

with one another; (14) the history of drug or alcohol abuse of a parent or member of the parent's
                                                   11
                                                           parent or member of the parent's
household; and (15) the mental and physical condition of a
                                                            with a sixteenth general factor
household. 23 Pa.C.S.A. §5328. 23 Pa.C.S.A. §5328 concludes

of, "any other relevant factor." Id.
                                                                       factors pursuant to 23 Pa.
         This Court, as required, appropriately considered all sixteen
                                                                  physical custody and
C.S.A. §5328 in reaching its decision to award Father with shared
                                                             2016, in Support of the August
discussed the factors in our Memorandum Opinion of August 8,
                                                                its discussion and consideration
1,   2016 Final Custody Order. The Court included in a footnote
                                                                              case. The Court stated:
of the factors that it found to be neutral or not at issue in this particular
                                                                                    that are not issues in
         There are statutory factors for awarding custody and for relocation
                                                                                  the Children from the
         this case. There were no allegations that either parent withheld
                                                                              and provides Father with
         other parent. The current custody schedule was agreed upon
                                                                           conduct of either parent to
         frequent contact. There was no allegation of a pattern of
                                                                            Pa.C.S.A. § 5328(a)(1) 23
         promote or thwart the relationship with the other parent. 23
                                                                             by either party to turn the
         Pa.C.S.A. § 5337(h)(5). There was no testimony of attempts
                                                                                  have been no issues of
         children against the other parent, 23 Pa.C.S.A. 5328(a)(8). There
                                                                                    § 5328(a)(2.1). The
         child abuse or involvement of protective services. 23 Pa.C.S.A.
                                                                          siblings to be considered, 23
         Children are not being separated and there is no step or half
                                                                                     factors consider the
         Pa.C.S.A. § 5328(a)(6). The relocation factors and the custody
                                                                            23 Pa.C.S.A. § 5328(a)(7).
         preference of the Children. 23 Pa.C.S.A. § 5337(h) (4) and
                                                                           to comprehend the custody
         While the Court believes that the Children are old enough
                                                                                 were visibly upset at an
         litigation, the Court chose not to interview them. The Children
                                                                                into Court. The Court
          attempt to interview them and were upset prior to coming
                                                                               interview to subject them
          concluded that given their maturity it would not be in their best
                                                                                  There was no issue that
          to an interview. Neither parent insisted that they be interviewed.
                                                                             to make appropriate child-
          with either party's availability to care for the child or ability
                                                                              history of drug or alcohol
          care arrangements. 23 Pa.C.S.A. § 5328(a)(12). There is no
                                                                              or physical condition that
          abuse of a party or member of a party's household or mental
          impacts custody. 23 Pa.C.S.A. § 5328(a)(14) and (15).
                                                               of many of these factors is
August 6, 2016, Mem. Opinion, P.8, Fn.3. While this discussion
                                                                      the reasons for its custody
brief, "the Custody Act requires only that the trial court articulate
                                                               into consideration      the enumerated
decision in open court or in a written opinion or order taking

 factors." M.J.M.   v.   ML.G., 63 A.3d 331, 336 (Pa. Super. 2013). In MJ.M, the Pennsylvania

                                                     12
Superior Court held that,
                                                                                   for the trial
       Contrary to Mother's argument, there is no required amount of detail
                                                                                   factors are
       court's explanation; all that is required is that the enumerated
                                                                        considerations. For
       considered and that the custody decision is based on those
                                                                             case at bar, it is
       example, from the trial court's Explanation of Decision in the
                                                                          5328(a) factors to
       clear that while the trial court found the majority of the section
                                                                            found that Father
       balance fairly equally between Mother and Father, the trial court
                                                                                   would with
       was more likely to promote a relationship with Mother than Mother
                                                                              was a point of
       Father and that Mother's attention to Child's educational needs
                                                                               better attend to
       grave concern. The trial court further concluded that Father would
                                                                           its Explanation of
       these needs. Explanation of Decision, 8/16/12, at 1-9. Thus, in
                                                                               it weighed the
       Decision, the trial court did precisely what it should have done;
                                                                          determination and
       entirety of the section 5328(a) factors in making the custody
                                                                                of the reasons
       articulated its considerations in a manner that informed the parties
       for the custody award.

Id. at 336(footnotes omitted). The one factor that was arguably
                                                                not specifically cited to

in regards to the shared physical custody was the proximity
                                                            of the residences of the

                                                                        the parties did not
parents here in Lehigh County. This is because as of the time of trial,
                                                                        Thus the only
know where Mother would reside after the sale of the marital residence.
                                                                 between Father's
distance the Court had to evaluate at that time was the distance
                                                                    Mother in South
residence in Allentown and Mother's proposed new residence with her
                                                                     in 23 Pa.C.S.A.
Carolina. Thus the Court considered all the required custody factors

§5328 (a) in reaching the determination that the children's best
                                                                 interests would be served

by an award for shared physical custody and Mother's seventh
                                                             contention of error is

meritless.

       Weight of the Custody Factors
                                                                                       the factors
        Mother's eight contention of error is that the Court inadequately weighed
                                                                            that the children's best
under 23 Pa. C.S.A. §5328 (a) (3), (9), (10), and (12) in the determination
                                                                  dealt with factor (12)
interest required an award for shared physical custody. The Court

                                                   13
                                                                                              no
summarily in footnote   3   to the Memorandum Opinion of August 6, 2016, stating "[t]here was

                                                                                   to make appropriate
issue that[sic.] with either party's availability to care for the child or ability
                                                                         children were cared
child-care arrangements." The evidence produced at trial showed that the
                                                                         and his Father
for almost exclusively by the parents or extended family members. Father
                                                                         the children during the
testified that Father spent almost every minute of his custody time with
                                                                       Father's meals
week, with the children. The Court addressed Mother's complaints about
                                                                        and that Mother trusts
medication, and tardiness. The Court found that Father is a good parent
                                                                            and was available to
Father as a parent. The record reflected that Mother is a primary caregiver
                                                                               did not error in
care for the child or make appropriate child-care arrangements. Thus the Court

weighing this factor as neutral.
                                                                                     daily physical,
       In regards to the tenth factor, "which parent is more likely to attend to the

emotional, developmental, educational and special needs of the children,"
                                                                          both parties testified

                                                                              parties tuck their
about attending to their children's needs on a regular consistent basis. Both
                                                                                   was the primary
children in at night, feed, clothe, and bathe the children. It is true that Mother

care giver, particularly when the parties were married, but Father was the
                                                                           traditional breadwinner

and had less time available to care for the children. It has long been held
                                                                            that the "fact that a

parent must work is not a factor that may be used to deprive that parent of
                                                                            custody where

                                                                            Witmayer v.
adequate arrangements have been made for child's care in parent's absence."

Witmayer, 467 A.2d 371 (Pa. Super. 1983). Since separation, Father
                                                                   has been actively involved

                                                                               are in his care.
in the children's lives and attending to the children's daily needs while they

Thus, the Court did not inappropriately weigh the tenth custody factor in
                                                                          reaching its

determination that the factor was equally established.
                                                                             Mother's tenth
        The Court addresses the weight given to 23 Pa. C.S.A. (9) below with
                                                    14
contention of error regarding the Court's conclusion that Father is more stable in his

circumstances at this time. There was credible testimony from both parents about the many

parental duties each parent performs on behalf of the children, thus Mother's contention that the

Court inadequately weighed 23 Pa.C.S.A. §5328(a)(3) to be neutral is not supported from the

record. Thus, Mother's eighth contention of error is meritless.

         Mother's Role as Primary Caretaker

         Mother's ninth contention of error is that this Court inadequately weighed Mother's role

as the primary caretaker of the children in its determination that the children's best interests

required an award for shared physical custody. The Court specifically stated that, "since

separation, Mother has been the primary caretaker of the Children in the marital residence."

August 6, 2016, Mem. Opinion, P.6. The Court further discussed Mother's role as the parent

primarily responsible for attending to the Children's needs on Page 9 of the Memorandum

Opinion, but also discussed all that Father has done to perform parental duties since the parties

separation. See id, at P.9-10. The "primary caretaker doctrine" was formerly used by

Pennsylvania Courts in custody cases, "to tip the scales in favor of the primary caretaker in a

situation where the trial court deemed both natural parents to be fit to act as a primary custodian"

M.J.M.   v.   M.L.G., 63 A.2d. at 337-338. In M.J.M., the Pennsylvania Superior Court described in

length the evolution of this primary caretaker doctrine:

                 [O]n January 24, 2011, major revisions the Custody Act took effect. See
         23 Pa.C.S.A. § 5321 et.seq. These revisions included the addition of section 5328,
         which, as discussed above, sets forth a list of factors that a trial court must
         consider when making a custody determination. Prior to listing the specific
         factors, this provision provides: "In ordering any form of custody, the court shall
         determine the best interest of the child by considering all relevant factors, giving
         weighted consideration to those factors which affect the safety of the child[.]" 23
         Pa.C.S.A. § 5328(a).

                                                   15
         The language of this statute is clear. It explicitly provides that all relevant
factors shall be considered by the trial court, and the only factors that should be
given "weighted consideration" are factors that "affect the safety of the child[.]"
Id. "When the words of a statute are clear and free from all ambiguity, the letter
                                                                                      of
it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. §
 1921(b); see also Arlo v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194,
 1201 (2009). If the Pennsylvania Legislature intended for extra consideration
                                                                                      be
given to one parent because of his or her role as the primary caretaker, it would
have included language to that effect. Stated another way, the absence of such
language indicates that our Legislature has rejected the notion that in analyzing
both parents, additional consideration should be given to one because he or she
has been the primary caretaker.
          Furthermore, the consideration the primary caretaker doctrine sought to
address (which parent spent more time providing day-to-day care for a young
child) is addressed implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§
5328(a)(3) ("The parental duties performed by each party on behalf of the
child."); (a)(4) ("The need for stability and continuity in the child's education,
family life and community life."). The considerations embraced, by the primary
caretaker doctrine have been woven into the statutory factors, such that they have
become part and parcel of the mandatory inquiry.
         In short, the Legislature has created a mandatory inquiry to aid trial courts
in determining the best interests of the child in a custody dispute. In doing so, it
articulated the components of a parent's obligations and characteristics, and a
child's needs and welfare, that must be incorporated in the trial court's custody
decision where the parents are incapable of doing so on their own. In setting forth
these factors, the Legislature has required the trial court to give additional weight
only to factors that it finds affect the safety of the child. This language is clear,
and we cannot expand it to provide that a trial court must also give weighted
consideration to a party's role as primary caretaker. We simply cannot graft the
judicially-created primary caretaker doctrine on to the inquiry that the Legislature
has established, and so we conclude that the primary caretaker doctrine, insofar as
it required positive emphasis on the primary caretaker's status, is no longer viable.
         We hasten to add that this conclusion does not mean that a trial court
cannot consider a parent's role as the primary caretaker when engaging in the
statutorily-guided inquiry. As discussed above, a trial court will necessarily
consider a parent's status as a primary caretaker implicitly as it considers the
section 5328(a) factors, and to the extent the trial court finds it necessary to
explicitly consider one parent's role as the primary caretaker, it is free to do so
under subsection (a)(16). It is within the trial court's purview as the finder of fact
to determine which factors are most salient and critical in each particular case.
See A.D. v. MA.B., 989 A.2d 32, 35-36 (Pa.Super.2010) ("In reviewing a custody
order ... 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."). Our decision here does not change that.
                                           16
                                                                          the primary
Id at 338-339 (Fn.10 omitted). Here the Court considered Mother's role as

caretaker in the analysis of the 23 Pa.C.S.A. §5328(a) factors.          Mother is not entitled to

                                                                        contention of error is
additional weighted consideration for this role and thus Mother's ninth

without merit.

       Finding of Father's Stability
                                                                                finding that
       Mother's tenth and eleventh contentions of error challenged this court's
                                                                               that this Court
Father is the more stable parent with respect to his residence. Mother alleges
                                                                              the Mother
improperly concluded that Father is more stable in his circumstances, because
                                                                           court where the
intended to vacate the former marital residence and it was "unknown to the
                                                                                 had indicated an
Children will attend school this fall." Mother also alleges that, because Father
                                                                                    that Father is
intention to move to a new residence in the near future, the Court erred in finding
                                                                           stability in the parents
the more stable parent with respect to his residence. The Court considered
                                                                          "which party is more
circumstances in accordance with custody factor 23 Pa.C.S.A. §5328(a)(9),
                                                                                the children
likely to maintain a loving, stable, consistent and nurturing relationship with
                                                                                   to 23
adequate for their emotional needs." The Court also looked at stability in regards
                                                                                      and
Pa.C.S.A. §5328 (a) (4), "the need for stability in the children's education, family,

community life."
                                                                                        the children's
        At the time of the custody trial, father was currently living with his parents,
                                                                         residence and had been
paternal grandparents in Allentown. The children were familiar with this

staying there overnight with Father on alternating weekends at the very
                                                                        least since March 26,

                                                                             because he knew
2015. See N.T., 7/8/2016, at 189:4-8. Father chose to stay with his parents,
                                                                           a good, safe,
their house had enough bedrooms to accommodate the children, and "[i]t was

                                                  17
place." Father has been employed at the same company,       eib as an implementation engineer for
nine and a half years. See N.T., 7/8/2016, at 190:25-191:17. He works Monday, Wednesday,

Friday from 8:30 to 5:30 down in Pottsville; and then Tuesday, Thursday, he works from          8   am to

4 pm from home. See NJ., 7/8/2016, at 191:23-25. Father testified that after his name is

removed from the mortgage on the marital residence and the alimony payments to Mother cease

in December he does plan on moving out and buying a home. See N.T., 7/8/2016, at 210:1-15.

Counsel for Father indicated to the Court that Father intends to obtain an address in the

children's current school district. See N.T., 7/8/2016, at 9:7-9. This will provide the children

with stability in a residence, education, and family and community life. The removal of a small

child from its environment is a factor which bears upon a child's emotional well-being for

purposes of awarding custody. Custody of Phillips, 394 A.2d 989, 992 (Pa. Super. 1978). Here,

Father is not relocating until December of 2016, while Mother is of necessity relocating very

quickly because of the pending sale of the marital residence. Father's current residence is a

known, safe and good place for the children. Father's stable long term employment and his

commitment to buying a house in the children's current school district will enable the children to

maintain continuity in their friendships, schooling, afterschool activities, and relationships with

extended family. Father testified that over the summer, "my sister watches them on Tuesdays.

My mom watches them Wednesday, Thursday, Friday, and that's the way it's been all summer."

See N.T., 7/8/2016, at 216:10-14. The children have not been in childcare and have been cared

for all by extended family and friends. See N.T., 7/8/2016, at 216:22-217:5. This establishes

continuity for their family life, which helps contribute to a loving, stable, consistent, and

nurturing relationship with the children adequate for their emotional needs.

       Mother, on the other hand, was aware at the time that she signed the property settlement
                                                  18
                                                                                        to be
agreement, December 21, 2015, that she would need to find full time employment in order

able to afford the marital residence at the end of the alimony payments in 2016, and
                                                                                     that she

                                                                                      only
needed to refinance the mortgage by September of 2016. Despite this knowledge, Mother
                                                                                         that
applied for one full time position in Lehigh Valley. The testimony at trial demonstrated
                                                                                    her
Mother had been planning on moving to South Carolina since December of 2014, helped
                                                                                        South
fiancé move to South Carolina, helped her mother move within ten miles of her fiancé in

Carolina, and neglected to make a sincere, unencumbered effort to find employment in
                                                                                   reflects
Pennsylvania or maintain the marital residence. D.KD., 141 A.3d at 577. The record
                                                                                         all of
that Mother was determined to move to South Carolina, and that she purposefully directed

her available resources toward that state, rather than Pennsylvania and the maintenance of a
                                                                                           Id. A
loving, stable consistent relationship with the children focused on their emotional needs.

court "must consider the importance of continuity in the children's life and desirability of

development of stable relationship with established parental figure and known physical

environment." Gerber    v.   Gerber, 487 A.2d 413, 416(Pa. Super. 1985). The Court found that as

a result of, "Mother's failure to find full time employment, Mother and Children will
                                                                                      be vacating

the residence where the children have resided for the past four years." Mother has had
                                                                                       various

part-time positions and now works at SUMO Hair Salon for about 30 hours a week where
                                                                                     she

earns $989.71 per month. See N.T., 7/8/2016, 13:4-17:21. It is unknown where Mother
                                                                                    will

                                                                                          Mother
choose to reside as she will also need to pursue full time employment to support herself.

is scheduled to marry her Fiance in December of 2016, he lives in South Carolina.
                                                                                  Thus, while

Father's residence may change to the children's current school district in December, Mother's

residence is a complete unknown. Therefore, the Court did not err finding that Father is the
                                                                                                it
more stable parent with respect to his residence. Because of the sale of the marital residence,
                                                  19
is unknown to the Court where the children will attend school this fall, Father's current residence

is in the Allentown School District, Mother made no alternative plans for housing in the

children's current school district should her relocation petition be denied. This ambiguity in

where the children will attend school does effect the children's emotional stability and the

stability in their educational life. The Court did not tie the finding, "it is unknown where the

Children will attend school this fall" to Father's stability. See August 6, 2016, Mem. Opinion,

P.11. Moreover, the Court emphasized that, "at this time, it appears that Father is more stable in

his circumstances; however this is but one factor." See Id. (emphasis added). Thus, the Court

did not put undue weight on this single factor, and did not err in concluding that Father is more

stable in his circumstances.

       Immediate Uncertainty with Respect to the Children's Schooling

       Lastly, Mother contends that because the court denied Mother's planned relocation, this

Court "erred in weighing against Mother the immediate uncertainty with respect to the children's

schooling as an indication of Mother's instability supporting the court's modification of

Mother's primary physical custody to an award of shared physical custody." Mother provided

Father with Notice of her Proposed Relocation to South Carolina by letter in January of 2016.

Father promptly filed an objection to the Proposed Relocation and a Petition to Modify Custody

in February of 2016. Mother has been on notice since that time that her request to move the

children to South Carolina might not be granted. She has also been on notice since December of

2015, that she could not afford to stay at the marital residence without full time employment past

September of 2016 when she would have to have secured refinancing of the mortgage. The

Children's school district is determined by their primary address. Despite this knowledge,

Mother has done nothing to secure an alternate address in the children's current school districts
                                                 20
thus it was not improper for the Court to consider Mother's failure to plan for the children's

schooling as the Court is instructed to consider "any relevant factor" in the best interest analysis.

23 Pa.C.S.A. §5328(a)(16).

       Conclusion:

       We respectfully request that the August    1,   2016, Final Custody Order be affirmed. If

Mother wishes to regain primary custody of her children, in light of her new living arrangements,
                                                                                            court
she should file a petition for modification pursuant to 23 Pa.C.S.A. §5328(a) and the trial

would be able to hold a hearing and render a custody determination utilizing the 23 Pa.C.S.A.

§5328(a) best -interest factors in light of the new circumstances. See D.K.D.   v.   A.L.C., 141 A.3d


566, 580 (Pa. Super. 2016).

                                                         BY THE COURT;

                                                                      4A/11G6g4;
                                                           ichele A. Varricchio, J.




                                                  21
Leslie Kutney
From:                           John J. Zettlemoyer, Jr. [ilzj@ptd.net]
Sent:                           Thursday, July 14, 2016 4:19 PM
To:                             Leslie Kutney;detaglioli@markowitzandrichman.com
Cc:
Subject:                                 v.       Walli
                                                                                                              now under
Judge Varricchio & Attorney Taglioli: My client has just informed me that her residence in Emmaus is
                                                     best,    light of the pending case, to inform you, rather than to hold this
agreement of sale. advised her that thought
                      I                       I   it       in
                                                                                                              because of the
information back. She has also asked me to request that the children not be told of this just yet, again
pending case. She told me that she intends to tell Mr.        vvalk  today, and ask him not to tell the children just yet. At this
time I know of no further details about the sale.

John J. Zettlemoyer, Jr., Esq.
Zettlemoyer Law Office, LLP
53 North Third Street
Emmaus, PA 18049
(610) 967-4654
Fax: (610) 965-3420
johnAzettlemoverlaw.com
http://www.zettlemoyerlaw.com
                                                                                                                                and may
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