J-A26017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.R.                                                IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

E.K.B.

                            Appellant                     No. 756 MDA 2015


                 Appeal from the Order Entered on April 1, 2015
                 In the Court of Common Pleas of Centre County
                         Civil Division at No.: 2012-0629


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                               FILED OCTOBER 26, 2015

       E.K.B. (“Mother”) appeals the April 1, 2015 order that awarded

primary physical custody of E.R. (“Child”) to T.R.R. (“Father”). We affirm.

       Mother and Father married on May 6, 2009 in Nebraska. The parties

moved to Pennsylvania because Mother believed she had a job opportunity

at Penn State.      Child was born in August 2010.         On February 15, 2012,

Father filed a complaint in divorce.           Mother had moved back to Nebraska

with Child. Also on February 15, 2012, Father filed an emergency custody

motion. The trial court ordered Mother to return to Pennsylvania with Child.

On May 21, 2012, the trial court cancelled the upcoming custody conference

because the parties had reached a temporary agreement and were residing

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A26017-15



together.     However, the divorce still was proceeding as evidenced by

Mother’s request for alimony pendente lite.

       On    October     15,   2012,     the   court   entered   an   interim   order

memorializing the parties’ agreement to permit Mother and Child to relocate

temporarily to Nebraska.         Thereafter, on November 28, 2012, the parties

entered into a marital settlement agreement and a parenting plan.               They

agreed to share legal custody and that Mother would have primary physical

custody. Father was awarded partial physical custody, but with an irregular

schedule.    Father waived any objection to Mother and Child relocating to

Nebraska. On December 20, 2012, the parties divorced.

       On May 29, 2013, Father petitioned to modify the custody schedule to

increase his periods of custody. The parties reached an agreement in which

Father appeared to have more time with Child, but still followed an irregular

schedule.1

       On August 6, 2014, Mother filed a notice of relocation, indicating that

she intended to relocate with Child from Nebraska to Arkadelphia, Arkansas.

On August 8, 2014, Father filed a petition to modify custody, in which he




____________________________________________


1
      For example, Father had custody October 10 through October 14,
2013, November 23 through December 6, 2013, January 4 through January
18, 2014, and March 1 through March 15, 2014. Father then had roughly
two non-consecutive months of custody in summer 2014 and then had
custody for ten days each in October and November of 2014.



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requested primary physical custody of Child.      Father also filed a counter-

affidavit in opposition to Mother’s proposed relocation.

      On August 21, 2014, Father filed an emergency motion for custody,

alleging that Mother already had relocated to Arkansas with Child without

the court’s permission. On that same day, the trial court awarded physical

custody of Child to Father. On November 4, 2014, the parties reached an

interim custody order, pending their hearing on relocation and custody, in

which they agreed to share physical custody on a rotating five-week basis.

      The trial court held hearings on December 22, 2014 and February 27,

2015. On the first day of the hearings, Mother testified as follows. Mother

had a position as an assistant professor of psychology at Henderson State

University in Arkansas.    Notes of Testimony (“N.T.”), 12/22/2014, at 5.

Mother was Child’s primary caregiver since Child’s birth, providing day-to-

day care while Father worked.     Id. at 6.   Mother alleged that the parties

separated because Father was emotionally unstable and because he became

emotionally abusive, controlling, and threatening.         Id. at 7-13.   At one

point, Father informed Mother that he was seeking treatment for borderline

personality disorder. Id. at 14-15.

      Mother went to Nebraska in September 2011 to visit family and stayed

there until January 2012 because of Father’s mental health issues.        Id. at

17-19. Mother returned to Pennsylvania in January 2012 because Child was

scheduled for surgery. Id. at 19. Mother left with Child for Nebraska again

in February 2012 because Father’s behaviors were escalating.          Id. at 20.

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Mother left without telling Father because she was scared for her safety. Id.

at 21.     When Mother learned of the February 2012 order giving Father

custody, she returned to Pennsylvania. However, Father only had custody of

Child for one day before Father returned Child to Mother. Id. at 22. Mother

moved back into Father’s residence because Mother did not have a job and

because Father controlled all the finances. Id. at 23-24.

     In October 2012, Mother and Child returned to Nebraska to live with

Mother’s mother after the parties reached a custody agreement. Id. at 24.

Mother had primary custody and Father had extended periods of partial

custody.    The parties would drive to make custody exchanges, meeting

about halfway.     Id. at 25.   Mother also indicated that Father had been

inflexible in making adjustments to custody exchange times and locations.

Id. at 45-46. Mother had difficulty obtaining work in her field in Nebraska,

only finding a temporary postdoctoral research position. Id. at 26. Mother

informed Father that she was seeking work nation-wide in academia. Id. at

27-28. When Mother was offered and accepted the Arkansas position, she

contacted her former attorney and was told that she could proceed with the

move. Id. at 36.

     When Mother informed Father of the move, he objected and said that

he would not let Child move any further away than Nebraska.       Id. at 37.

Mother explained that the distance was equivalent; 1,127 miles from

Nebraska and 1,113 miles from Arkansas.      Id. at 39-40. Mother believed

that the move to Arkansas would not affect Father’s scheduled custody. Id.

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at 116.     However, Mother admitted that she did not provide ninety days

notice.    Id. at 81.   But based upon her attorney’s advice, Mother did not

believe she was required to provide such notice. Id. at 135.

         Mother was concerned about Father’s mental stability and its effect

upon his ability to care for Child. Id. at 50-51. Mother admitted to taking

anxiety medication and believed that Father needed medication as well. Id.

at 51.

         Mother rents a three-bedroom house in Arkadelphia. Id. at 62. Child

has attended pre-school at the university when Mother had custody. Id. at

63-64. Mother also hired a nanny to care for Child when the pre-school was

not in session.    Id. at 67.   Mother regularly informs Father about what is

happening in Child’s life when Child is with Mother. Id. at 74.

         M.G., Mother’s mother, confirmed that Father appeared emotionally

unstable in the time leading up to the parties’ separation, stating that he

would sob uncontrollably and corner family members to talk about his

marital problems. N.T., 2/27/2015, at 6-7. M.G. testified that, in the two

years that Mother and Child lived with her, M.G. observed Mother to be a

caring and nurturing parent and believed that there was a strong bond

between Mother and Child. Id. at 10. M.G. testified that Mother was scared

of Father when she returned to Nebraska. Id. at 24.

         Dr. Aneeq Ahmad, Mother’s supervisor, testified regarding Mother’s

work hours and flexibility in scheduling.    Id. at 37-39.     Dr. Ahmad also




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testified that the university was very pleased with Mother’s job performance.

Id. at 40-41.

     Kelli Sanford, Child’s nanny, also testified. At the time of the second

hearing, Ms. Sanford typically watched Child from 8 am until noon on

Mondays, Wednesdays, and Fridays, and from 3 to 7 pm on Thursdays and

Fridays. Id. at 54. Child’s preschool ran from 12:15 to 3:15 pm. Id. at 55.

Ms. Sanford would watch Child at other times as needed. Id. at 54. Holly

Schultz, the supervisor of Child’s pre-school testified that Child is well-

behaved and has made friends in her class. Id. at 70.

     Father testified as follows. Father started taking psychiatric medicine

around the age of twenty, after he was diagnosed with cancer. Id. at 137.

He went on and off medication after that.     Id. at 138.   Father started to

attend counseling regularly when he lived in Nebraska and also started

taking medication for ADHD. Id. at 139. In May 2011, Father believed that

Mother was going to leave him.          After conversations in which Mother

commented on his anxiety, he asked his doctor for a higher dosage of his

anti-anxiety medication. Id. at 140. Father then experienced mood swings,

anger, and other symptoms.      Id. at 141.     Father denied that he ever

physically abused Mother; he admitted that he said “mean things” to Mother

while he was having difficulties with his medication.   Id. at 202, 205.   At

some point, Father stopped his medication and was back to normal behavior

a couple of weeks later. Id. at 150.




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       Around the time that Father had problems with his medication, Mother

told Father that their mutual psychiatrist discussed with her the idea that

Father had a brain tumor. Id. at 141-42. However, Father found out that

he did not have a tumor and he believed that Mother made up the whole

story. Id. at 142. Mother believed that Father had borderline personality

disorder, but he did not agree with her. Id. at 148-49. At the time of the

hearings, Father was seeing a counselor regularly. Id. at 144.

       Mother and Child went to Nebraska in September 2011 with Father’s

consent.   Id. at 158-59.   Mother and Child lived with Father through the

divorce process, March through November of 2012. Then Mother and Child

moved back to Nebraska and Father estimated that, for 2013, Child spent

thirty percent of the time with him and seventy percent with Mother. For

2014, Father believed that Child spent roughly equal time with each parent.

Id. at 165.

       Mother told Father about the Arkansas job in late July 2014.    Id. at

166.    Father looked for employment near Mother’s new home, but was

unable to find anything. Id. at 183. Father testified that the driving time to

the exchange point since Mother’s move to Arkansas is two to three hours

longer than to the Nebraska exchange point. Id. at 217.

       Father anticipated Child starting kindergarten in fall of 2015 if he

received primary custody. He arranged his teaching schedule to take her to

and pick her up from the bus stop.      Id. at 179.    Father has supportive




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neighbors who are involved in Child’s life. Id. at 189-90. Father takes care

of Child’s day-to-day needs while she is in his custody. Id. at 192.

      Father alleged that Mother has withheld information from him about

childcare arrangements.    Id. at 223-24.   Father also was concerned that

Mother did not tell him about her new boyfriend, I.C., who he believed was

going to be moving in with Mother. Id. at 227, 231.

      Scott Scotilla, Ph.D., a licensed psychologist, performed an evaluation

on Father and testified on his behalf as follows. Dr. Scotilla met Father one

time in November 2014.     N.T., 12/22/2014, at 160.     Father’s depression,

anxiety and agitation in 2011 resulted, in part, from the medication that he

was taking at that time, and, when Father’s medication was changed, he

saw an improvement in his symptoms. Id. at 170-73. Dr. Scotilla opined

that Father did not have borderline personality disorder, but, instead, had

difficulty with interpersonal relationships. Id. at 177-80. Dr. Scotilla also

indicated that his testing did not show any indications that Father was

struggling with anxiety or depression.    Id. at 183.   However, based upon

Father’s past history, Dr. Scotilla diagnosed Father with generalized anxiety

disorder that was in remission.    Id. at 186.   At the time of the hearing,

Father was taking a mood stabilizer and had been since 2011. Id. at 197.

He had stopped taking medication for ADHD in 2014. Id. at 199.

      P.R., Father’s mother, testified.   P.R. testified that the parties had

difficulties in their marriage after Child was born and that she heard

arguments between them. N.T., 2/27/2015, at 80-82. P.R. reported that

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she flew to Pennsylvania in January 2012 because Mother told her that

Father’s doctor suspected that Father had a brain tumor and that Mother

needed help with Child while Father was seeking treatment.          Id. at 84.

Father did not have a tumor, but P.R. stayed to visit with the family. While

P.R. was visiting in January 2012, Father was taking psychiatric medication

and P.R. admitted that it appeared to cause unusual behavior in Father. Id.

at 86. P.R. testified that Father is a loving parent and engages in a lot of

activities with Child. Id. at 88-89.

      R.T., Father’s sister also testified.   R.T. recalled an incident in 2011

when Mother and Father were arguing and Mother grabbed Father’s arm to

prevent him from leaving and pulled him toward her. R.T. did not believe

Mother hurt Father.    Id. at 108-09.    R.T. had no concerns about Father’s

ability to parent Child. Id. at 116.

      On rebuttal, Mother denied that she told Father that he had a brain

tumor. Id. at 287. Mother testified that her psychologist speculated that

Father’s behavioral issues might have a physical, rather than psychological,

cause; Mother shared that idea with Father. Id. at 287-88. Mother testified

that she met I.C. through a single-parent website about a year before the

hearing. Id. at 288. I.C. lived in Canada so he had only met Child twice.

Id. at 289-90. I.C. came to Pennsylvania to see Mother while the hearing

was occurring and Mother invited Father to meet I.C. Id. at 289. Mother

testified that I.C. does not live with her and there are no plans for him to do




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so.   Id. at 291.    I.C., with two exceptions, had only visited Mother when

Child was in Father’s custody. Id. at 297.

      On April 1, 2015, the trial court entered its order.    The trial court

detailed its weighing of the factors pursuant to 23 Pa.C.S.A. § 5328(a)

(“custody factors”) and § 5337(h) (“relocation factors”).       Following its

discussion, the trial court denied Mother’s request for relocation and granted

Father’s motion to modify custody. The court ordered shared legal custody,

awarded Father primary physical custody, and awarded Mother custody in

Arkansas for every summer vacation and spring break, in addition to

alternating Thanksgiving and Christmas holidays.

      On April 30, 2015, Mother filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).     On May 1, 2015, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a), in which it incorporated its April 1, 2015

opinion and order.

      On appeal, Mother raises the following issues for our review:

      1. Based upon the evidence and testimony at [the] hearing, and
         the factors to be considered in [23 Pa.C.S.A. § 5328(a)], did
         the Trial Court abuse its discretion by failing to confirm
         primary physical custody of [Child] to [Mother]?

      2. Did the Trial Court abuse its discretion by requiring [Mother]
         to file a Notice of Relocation and immediately changing
         physical custody without providing [Mother] with an
         opportunity to be heard at her two-day trial?

      3. Did the Trial Court abuse its discretion in applying factors
         located in Pennsylvania’s Child Custody Relocation Statute,
         [23 Pa.C.S.A. § 5337(h)] to the instant case, because

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         relocation is defined by [23 Pa.C.S.A. § 5322] as “A change in
         residence of the child which significantly impairs the ability of
         a non-relocating party to exercise custodial rights,” and such
         relocation as defined by Sec. 5322 was not present in this
         case?

Mother’s Brief at 5.

      Our scope and standard of review of a custody order are well-settled:

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

      E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (citation
      omitted). With any child custody case, this Court has long
      stated that the paramount concern is the best interests of the
      child. Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super.
      2005). This standard requires a case-by-case assessment of all
      of the factors that may legitimately affect the “physical,
      intellectual, moral and spiritual well-being” of the child. Id.
      When a custody dispute involves a request by a party to
      relocate, we have explained, “there is no black letter formula
      that easily resolves relocation disputes; rather, custody disputes
      are delicate issues that must be handled on a case-by-case
      basis.” Baldwin v. Baldwin, 710 A.2d 610, 614 (Pa. Super.
      1998).

C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012).




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     In its order, the trial court denied relocation and changed the physical

custody schedule for the parties.     When addressing both relocation and

custody, a trial court is required to consider all of the relevant custody

factors enumerated in 23 Pa.C.S.A. § 5328(a), and all of the relevant

relocation factors pursuant to 23 Pa.C.S.A. § 5337(h). See A.V. v. S.T., 87

A.3d 818, 822-23 (Pa. Super. 2014). The factors are as follows:

     (a) Factors. – 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, including the following:

        (1) Which party is more likely to encourage and permit
        frequent and continuing contact between the child and
        another party.

        (2) The present and past abuse committed by a party or
        member of the party’s household, whether there is a
        continued risk of harm to the child or an abused party and
        which party can better provide adequate physical
        safeguards and supervision of the child.

        (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 party on behalf
        of the child.

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

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

        (7) The well-reasoned preference of the child, based on
        the child’s maturity and judgment.

        (8) The attempts of a parent to turn the child against the
        other parent, except in cases of domestic violence where


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        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 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.

        (11) The proximity of the residences of the parties.

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

        (13) The level of conflict between the parties and the
        willingness and ability of the parties to cooperate with one
        another. A party’s effort to protect a child from abuse by
        another party is not evidence of unwillingness or inability
        to cooperate with that party.

        (14) The history of drug or alcohol abuse of a party or
        member of a party’s household.

        (15) The mental and physical condition of a party or
        member of a party’s household.

        (16) Any other relevant factor.

23 Pa.C.S.A. § 5328.

     (h) Relocation factors. – In determining whether to grant a
     proposed relocation, the court shall consider the following
     factors, giving weighted consideration to those factors which
     affect the safety of the child:

        (1) The nature, quality, extent of involvement and duration
        of the child’s relationship with the party proposing to
        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.


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        (3) The feasibility of preserving the relationship between
        the nonrelocating party and the child through suitable
        custody arrangements, considering the logistics and
        financial circumstances of the parties.

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

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

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

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

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

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

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

23 Pa.C.S.A. § 5337.

     In her first issue, Mother asserts that the trial court failed to consider

certain testimony, made factual findings unsupported by the evidence,

and/or mis-weighed the custody factors in section 5328(a). Mother argues

that the trial court ignored testimony that Mother was the primary caretaker

for the majority of Child’s life and then made a factually incorrect finding

that both parents had performed parental duties, especially since Father

provided little testimony regarding his performance of parental duties.


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Mother’s Brief at 21-22. Mother also contends that the trial court incorrectly

determined that the need for stability weighed more favorably for Father

because Mother was the primary caretaker. Mother asserts that she had

witnesses who testified about childcare and other opportunities in Arkansas,

while Father did not have similar witnesses. Id. at 22-23. Mother argues

that the availability of extended family factor should have weighed more

favorably toward Mother since Father’s and Mother’s extended family are

closer geographically to her than they are to Father. Id. at 23-24. Mother

also contends that the evidence did not support the trial court’s conclusion

that she withheld information from Father. Instead, Mother asserts that she

provided   Father    with   information      about   her   move   and   childcare

arrangements as soon as possible and that she did not need to disclose her

relationship with I.C. because he was not a significant part of Child’s life.

Id. at 24-28. Finally, Mother argues that the trial court’s decision was based

upon her failure to provide the statutory notice of her relocation, her

contention that Father had a brain tumor or borderline personality disorder,

and her failure to inform Father about her boyfriend, none of which, Mother

contends, influence Child’s best interest.    Id. at 29-31.

      We disagree.    First, the trial court did not discount Mother’s role as

primary caretaker.    The court acknowledged that Mother was the primary

caretaker while the parties were married.        Trial Court Opinion (“T.C.O.”),

4/1/2015, at 2.     The trial court also noted, and the testimony supported,

that, after Mother returned to Nebraska, both parties were the primary

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caretaker “for their period of custody.” Id. Father had significant periods of

custody of the relatively young child after Mother moved.      It is true that,

sometimes, Father’s family visited or he visited his family during his periods

of custody, there was no evidence offered that demonstrated that anyone

other than Father met Child’s day-to-day needs for these extended periods

of time.    Mother takes issue with the trial court’s characterization of the

parties as “sharing custody.” However, the trial court did not suggest that

custody was shared equally, only that both parties exercised physical

custody. Even before the most recent custody litigation was initiated, Child

was spending periods of a month or more with Father.2 Again, there was no

indication that Father was incapable of caring for Child, except for Mother’s

contention that Father’s psychiatric issues possibly could recur.

       As for stability and continuity, the trial court found that Child “has

spent more time in State College than in Arkansas.” Id. at 4. Objectively,

that is true. Child had been in State College, at least part-time, since birth.

Child had only been in Arkansas for approximately thirteen weeks. Mother

and some of her witnesses testified that Child had adjusted well to Arkansas.

However, Father testified that Child had attended the same pre-school in

Pennsylvania, that Child would attend kindergarten with some of the children


____________________________________________


2
      See Parenting Plan, 11/28/2012, at 4 (as an example, “Father shall
have custodial time with the child in Pennsylvania from May 5, 2013 to June
24, 2013.”).



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from her pre-school class, and that Child had ties to the community.

Additionally, the fact that Mother provided witnesses beyond her own

testimony does not mean the trial court had to give more weight to that

testimony.    The trial court was free to credit Father’s testimony without

corroborating witnesses.    There was plenty of evidence in the record to

support the trial court’s conclusion that this factor weighed in favor of

Father.

      The trial court found that the availability of extended family factor did

not favor either parent.   Id. at 4.    The evidence supports this conclusion.

Father’s extended family was in Louisiana, approximately six hours from

Mother and twenty-four hours from Father. Mother’s extended family was in

Nebraska, approximately twelve hours from Mother. Clearly, neither party

has extended family who could respond quickly to an emergency situation or

provide day-to-day support.     However, both parents testified to friends,

neighbors, and colleagues who offer support and could provide emergency

care for Child if needed. The trial court’s conclusion that this factor was in

favor of neither parent was supported by the record.

      Finally, the trial court, in consideration of level of conflict and

cooperation and the catch-all factor, found that Mother “has shown an

unwillingness to share important information with Father.” Id. at 6, 9-10.

As examples, the trial court noted Mother’s failure to inform Father of her

move, about childcare providers, and about her boyfriend.          Id.   While

Mother has denied withholding information, testimony, credited by the trial

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court, supports the court’s conclusions. Mother provided an explanation as

to why she did not tell Father about the relocation at the earliest possible

time, but the evidence demonstrates that Mother and Child moved without

Father’s consent when Father shares legal custody, and without waiting for

court approval after Mother knew of Father’s objections. When confronted

with an email sent in October 2014, two months after the move, Mother

admitted that she did not tell Father about her childcare arrangements

immediately. Finally, the evidence demonstrated that Father became aware

of Mother’s boyfriend through Child, indicating that Child had met and

interacted with I.C. prior to Mother disclosing him to Father. While Mother

contends that this did not affect Child’s best interest, we will not second-

guess the trial court’s finding that it is indicative of a pattern of behavior by

Mother when the record provides support for that finding.

      We consider that:

      [i]t is not this Court’s function to determine whether the trial
      court reached the “right” decision; rather, we must consider
      whether, “based on the evidence presented, given due deference
      to the trial court’s weight and credibility determinations,” the
      trial court erred or abused its discretion in awarding custody to
      the prevailing party.

Jacob v. Shultz-Jacob, 923 A.2d 473, 479 (Pa. Super. 2007). Here, the

trial court’s findings of fact and consideration of the custody factors are

supported by the record and it did not abuse its discretion.

      Mother next contends that the trial court did not comply with Pa.R.C.P.

1915.4(d), which requires the trial court to issue a decision within fifteen


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days of the conclusion of a trial and 23 Pa.C.S.A. § 5425(a), which requires

notice and an opportunity to be heard. Specifically, Mother argues that, by

granting Father custody in an ex parte August 2014 order, the trial court

created a false status quo that influenced its decision on custody.        In

particular, Mother cites the trial court’s language that the parties “shared

custody.”   Mother asserts that it was error for the trial court to enter an

emergency order changing custody, then wait several months to hold a

hearing, and then delay further until an order was entered. Mother’s Brief at

31-34.

      We first address Mother’s contention that the trial court unduly

delayed its decision. Rule 1915.4 provides, in pertinent part, that:

      The judge’s decision shall be entered and filed within 15 days of
      the date upon which the trial is concluded unless, within that
      time, the court extends the date for such decision by order
      entered of record showing good cause for the extension. In no
      event shall an extension delay the entry of the court’s decision
      more than 45 days after the conclusion of trial.

Pa.R.C.P. 1915.4(d).

      In her account of a thirty-plus day period between the second day of

the hearing and the court’s order, Mother neglects to mention that the trial

court offered the parties the opportunity to provide the court with briefs and

proposed findings of fact and conclusions of law. N.T., 2/27/2015, at 300.

Mother’s counsel deferred to Father’s counsel’s decision on the issue.    Id.

Father’s counsel asserted that he wanted to file findings of fact and

requested twenty days to do so. Id. at 301. Mother did not object. The

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trial court memorialized that agreement in a February 27, 2015 order.

Therefore, although the hearing ended on February 27, the record did not

close until twenty days later when the parties submitted what were

essentially written closing arguments.             Both Mother and Father took

advantage of that opportunity, with Mother and Father filing their proposed

findings on March 19, 2015. The court’s order followed thirteen days later.

Therefore, we find no violation of Rule 1915.4.3

       Next, Mother contends that the trial court violated 23 Pa.C.S.A. § 5425

by not providing her notice and the opportunity to be heard before ruling on

Father’s emergency custody petition.           We first note that section 5425 in

Chapter 54 of the Domestic Relation Code relates to the Uniform Child

Custody Jurisdiction and Enforcement Act, which provides the statutory

scheme for determining which court has jurisdiction to enact and enforce

custody orders.      However, jurisdiction was not at issue in this case and it

proceeded under Chapter 53, Child Custody, of the Domestic Relations Code.

Therefore, section 5425 was not applicable.

       We have held that due process is satisfied when an ex parte order is

entered, but is then followed by a hearing and an opportunity to be heard.
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3
      Had there been a violation, it is unclear what remedy would be
available. We can find no decisional law that addresses this issue. Other
provisions of Rule 1915.4 call for dismissal of a complaint if time limits are
not complied with, but subsection (d) provides for no explicit remedy.
Requiring a new trial or vacatur of an order, as Mother suggests, would
result in judicial inefficiency and further delay finality in the custody case.



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Smith v. Smith, 371 A.2d 998, 1000 (Pa. Super. 1977). Further, our rules

contemplate that emergency or interim orders sometimes must be entered.

See Pa.R.C.P. 1915.4(e) (“Nothing in this rule shall preclude a party from

seeking, nor a court from ordering, emergency or interim special relief at

any time after the commencement of the action.”). We find no error in the

court entering a temporary order in response to Father’s emergency petition.

      Mother also complains that the delay between the temporary order

and the final order created a status quo that influenced the trial court. The

trial court entered its emergency order on August 21, 2014 and scheduled a

conference on September 1, 2014.       Father requested a continuance.   The

conference was held and resulted in a September 10 order which scheduled

a one-day hearing for October 31, 2014. The hearing was then rescheduled

until December 22, 2014 after Father requested a continuance because his

counsel sought to withdraw.     When the parties were unable to finish the

hearing in one day, a second day was scheduled for February 27, 2015.

Ideally, the hearings would have been concluded closer in time to the

petition being filed. However, there was no undue delay and no indication

that any delay was not due to scheduling availability. Further, there is no

evidence that the equally shared custody during the pendency of the petition

influenced that trial court’s decision. We find no error.

      Finally, Mother argues that the trial court erred in treating this as a

relocation case and applying the relocation factors. Mother contends that a

relocation, as defined by statute and by the parties’ agreement, constituted

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any move that required a change in custody. Mother argues that, because

the distance between Arkansas and Pennsylvania substantially was the same

as the distance between Nebraska and Pennsylvania, her move to Arkansas

did not require a change in Father’s custody and, therefore, was not a

relocation. Mother also complains that some of the facts that the trial court

cited in its relocation analysis should have been considered as part of its

analysis of the custody factors, namely that Mother’s move enhanced her

quality of life by providing her with secure employment and that Mother had

a better financial position in Arkansas.          Finally, Mother argues that her

failure to provide ninety days notice of her move should not be held against

her because she acted reasonably by seeking her attorney’s advice and

notifying Father as soon as possible. Mother’s Brief at 34-37.

      Mother is correct that the statute defines relocation as “[a] change in a

residence   of   the   child   which   significantly   impairs   the   ability   of   a

nonrelocating party to exercise custodial rights.”        23 Pa.C.S.A § 5322(a).

However, the parties agreed to a different definition in their parenting plan,

which the court entered as an order.            The parties agreed that “[n]either

party shall permanently relocate if the relocation would necessitate a change

in the parenting plan without a minimum written notice of ninety (90) days

to the other parent.” Parenting Plan, 9/3/2013, ¶11. The plan also set the

parties’ exchange location as South Bend, Indiana.           Id. ¶ 4.     Therefore,

Mother’s move “would necessitate a change in the parenting plan” because

the exchange location of South Bend would no longer be viable. Therefore,

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by the terms of the parties’ agreement, Mother’s move was a relocation and

the trial court did not err in treating it as such.4

       Mother’s argument that the trial court should have considered factors

related to relocation, such as her quality of life and financial position, as part

of the custody determination is without merit.         The trial court obviously

considered these factors in making its custody decision. Whether it stated

its consideration was in regards to custody or relocation is without moment.

The trial court weighed the evidence and found in favor of Father.          There

was no abuse of discretion that would permit us to interfere with that

determination.

       Finally, Mother argues that the failure to provide ninety days notice

should not be held against her because she acted reasonably under the

circumstances.      There is nothing in the record to suggest that the trial

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4
     Further, even if the trial court erred in applying the relocation factors,
we have stated that:

       [S]everal of the relevant factors of section 5337(h) are
       encompassed, directly or implicitly, by the custody factors listed
       in section 5328(a). Any relevant section 5337(h) factor that is
       not expressly encompassed in section 5328(a) should be
       considered by the trial court under the catchall provision of
       section 5328(a)(16).

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014). As the relocation
factors would be either encompassed by the custody factors or
considerations in the catch-all provision, it would have been, at most,
harmless error for the trial court to explicitly consider the relocation factors
had we determined that this was not a relocation case.



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court’s decision hinged upon Mother’s failure to provide notice. At most, the

trial court considered that failure in its larger characterization of Mother’s

pattern of withholding information.     Mother provided her reasoning for not

notifying Father about her move. The trial court considered that rationale,

but did not find it persuasive. Such a determination is within the trial court’s

purview, and, without more, we find no abuse of discretion.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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