J-S37015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.M.D.                                 :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
J.D.D.                                 :
                                       :
                                       :
APPEAL OF: K.M.D.                      :   No. 214 MDA 2017

              Appeal from the Order Entered December 30, 2016
               In the Court of Common Pleas of Lebanon County
                       Civil Division at No: 2011-20752

BEFORE:    STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED JULY 17, 2017

      K.M.D. (“Mother”) appeals from the order entered December 30, 2016,

in the Court of Common Pleas of Lebanon County granting J.D.D. (“Father”)

permission to relocate to Huntingdon County with the parties’ minor

children, W.D., a male born in November 1999, and M.D., a female born in

May 2001 (collectively, “the Children”). After careful review, we vacate and

remand with instructions.

      We glean the factual and procedural history of this matter from the

certified record.   Mother and Father are former spouses who married in

2000, separated in 2011, and divorced in 2014.      Mother commenced the

underlying custody proceedings by filing a complaint for custody on March

20, 2013. The trial court entered an agreed-upon custody order on February

7, 2014, pursuant to which the court awarded the parties shared legal and

physical custody of the Children.   On December 24, 2014, Father filed a
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petition for modification of the custody order, in which he requested primary

physical custody of the Children. The court entered an agreed-upon custody

order on February 20, 2015, awarding primary physical custody to Father

and maintaining shared legal custody with both parties. The order further

awarded Mother partial physical custody of the Children every Wednesday

afternoon from school dismissal until 5:00 p.m. during the school year, and

from 3:00 p.m. to 6:00 p.m. during the summer.           In addition, the order

awarded Mother partial physical custody one weekend per month from

Friday afternoon at 5:00 p.m. until Sunday afternoon at 5:00 p.m.

      On September 2, 2016, Father filed a notice of proposed relocation,

indicating that he intended to move from Lebanon County to Huntingdon

County.   Mother, acting pro se, filed a counter-affidavit objecting to the

relocation on September 16, 2016.        On November 1, 2016, Mother, now

represented by counsel, filed a petition for special relief, in which she again

objected to the relocation, and requested that the trial court enter an order

requiring that Mother and the Children attend counseling in order to “repair

their relationship.” Petition for Special Relief, 11/1/16, at 3.

      The trial court held a hearing on Father’s proposed relocation on

December 29, 2016.       Mother failed to appear at the hearing.     However,

Mother’s counsel did appear.     Mother’s counsel endeavored to explain her

absence to the court, and the following discussion took place.

           [Mother’s counsel]: To put on the record, Your Honor, I
      mean, I think I have to explain that there was -- that the parties
      have reached an agreement in principle.             It was my

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     understanding based on the fact that my client had contacted
     me and stated that she had a pre-planned vacation. I believed
     that they were going to reach an agreement. I told her that I
     believe that we’re not going to have a relocation hearing. You
     are going to be able to reach an agreement.

           However, with the holidays, being we were playing phone
     tag, we weren’t able to work out the different terms as far as
     exactly how things were going to play out.

            So at this point I haven’t had -- I attempted to contact my
     client. I haven’t been able to do so. Yesterday, today, the day
     before I tried to reach out to her, and have not heard back from
     her.

           So I’m in a position where I don’t think I can appropriately
     state what her position is. I can state where we were at as far
     as what the agreement in principle was, but I think that’s all that
     I can do.

                                    ***

            THE COURT: . . . . If she was that concerned and didn’t get
     a signed agreement saying -- let me ask you this so the record is
     clear: The agreement, whatever the terms might have been,
     didn’t dispute that he was going to relocate; is that correct?

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

           THE COURT: Well, then it’s an academic matter. She just
     doesn’t agree with all the terms and conditions. But had she
     been here, I would have asked her the same thing, you know:
     Are you opposing the relocation?

                                    ***

           Let me say this for the record: She knew it was going to
     be a relocation; correct?

           [Mother’s counsel]: Your Honor –

          THE COURT: She just thought there were some other
     terms.


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           [Mother’s counsel]: Prior to this -- prior to this date I had
     filed a Petition for Special Relief to work out -- to have this
     worked out prior to relocation, establishing counseling so when
     we got to the relocation there could be a conversation, or have
     some third-party therapist come in and say what the relationship
     is between mom and the rest of the family.

            However, because -- I explained to my client as well as in
     talking with [Father’s counsel] about the situation, I was -- my
     client was very aware that the chances of her being successful in
     fighting the relocation were minimal, but it was really her goal to
     try to re-establish her relationship with her kids.

           So I tried to do that before, but I put it on hold because I
     figured if we could work out an agreement, why have a
     contentious hearing, before we have the kids take the stand and
     have these different roles.

     THE COURT: Fair enough. Let me rule this way:

N.T., 12/29/16, at 2-6.

     The trial court then dictated the order complained of on appeal, which

it revised slightly and entered on December 30, 2016. In its order, the court

granted Father permission to relocate with the Children to Huntingdon

County.   The order further provided that the Children’s counselor should

refer them to a new counselor in Huntingdon County, and that Mother would

be able to contact the Children’s new counselor to discuss the possibility of

family counseling.   The order concluded by stating that the parties’ prior

custody arrangement “shall continue in full force and effect until and unless

either party requests a modification of the existing Custody Order.” Order,

12/30/16, at 2. Mother timely filed a notice of appeal on January 27, 2017,

along with a concise statement of errors complained of on appeal.


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     Mother now raises the following questions for our review.

     1. Did the Trial Court err when it failed to hold a full hearing with
     respect to [Father’s] Petition to Relocate, as required by 23
     Pa.C.S. § 5337?

      2. Did the Trial Court err when it failed to address the ten
     relocation factors, as required by 23 Pa.C.S. § 5337, when it
     granted [Father’s] Petition to Relocate?

     3. Did the Trial Court err when it modified the existing custody
     order without requiring that [Father] follow the dictates of
     Pa.R.C.P. 1915.17(f)(1), requiring the filing of a Petition to
     Modify Custody once a counter-affidavit objecting to the
     proposed relocation has been served upon [Father] and filed
     with the Court?

     4. Did the Trial Court err when it failed to hold a full hearing,
     pursuant to 23 Pa.C.S. § 5337(g)(1), prior to modifying the
     existing custody order?

Mother’s Brief at 4 (suggested answers omitted).

     We review Mother’s claims mindful of our well-settled standard of

review.

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

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).


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     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a).

     (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


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             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
             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(a).

      In addition, when considering a parent’s request to relocate with his or

her child, trial courts must consider the ten factors set forth at 23 Pa.C.S.A.

§ 5337(h).

      (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:



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          (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.




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

23 Pa.C.S.A. § 5337(h).

      Instantly, in the order complained of on appeal, the trial court

explained that it granted Father permission to relocate to Huntingdon County

“following comments by [M]other’s counsel, [] in recognition of the fact she

is not here to present any testimony to oppose the relocation, [and in

recognition of] the fact that but for some counseling issues she would not

have opposed the relocation[.]” Order, 12/30/16, at 1. In its opinion, the

court set forth its findings with respect to the Section 5337(h) factors. In

discussing the factors, the court emphasized that permitting Father to

relocate with the Children to Huntingdon County would allow the Children to

live on a family farm and be closer to members of their extended family.

Trial Court Opinion, 2/15/17, at 8-11.     The court did not set forth any

findings with respect to the Section 5328(a) factors.

      We first address Mother’s first, second, and fourth issues, which are

interrelated.   In these issues, Mother argues that the trial court erred by

failing to conduct an adequate hearing on Father’s notice of proposed

relocation prior to entering the order complained of on appeal.    Mother’s

Brief at 13-16, 18-19. Mother contends that she did not consent to Father’s

proposed relocation, and that the court’s conclusion that she did is not

supported by the record.     Id. at 13-14.    Mother further contends that,

because she did not consent to Father’s relocation, the court was obligated



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to hear testimony before reaching a decision on Father’s request to

relocate.1 Id. at 13-16. We agree.

       Initially, we stress that we cannot conclude from the record before us

that Mother consented to Father’s proposed relocation.        Mother filed a

counter-affidavit on September 16, 2016, as well as a petition for special

relief on November 1, 2016, indicating that she opposed the relocation.

While counsel stated during the December 29, 2016 hearing that Mother and

Father were negotiating an agreement that would allow Father to relocate,

the details of that agreement were never finalized. N.T., 12/29/16, at 3. In

addition, counsel’s statements suggest that Mother was only negotiating the

____________________________________________


1
  As part of her fourth issue, Mother argues that the trial court erred by
failing to discuss the factors set forth at Section 5328(a). We disagree. This
Court has held that trial courts need not address the Section 5328(a) factors
unless the court makes, or is asked to make, a change to the parties’
underlying “form of custody.” S.W.D., 96 A.3d at 406. If a court merely
addresses “a discrete custody-related issue,” such as “a dispute over a
custody-exchange location; which youth sports the children should play; or
whether a parent should be required to have children’s toys, beds, or other
things in his or her house[,]” consideration of the Section 5328(a) factors is
not required. Id. at 402-03 (citing M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super.
2014)) (footnote omitted). Here, the court did not change, nor was it asked
to change, the parties’ underlying form of custody. In his notice of proposed
relocation, Father indicated that no change to the current custody schedule
would be necessary, and the court did not include any changes in the order
complained of on appeal. While the court included provisions in the order
addressing the Children’s need for counseling in Huntingdon County, it is
clear that the Children’s need for counseling is a discrete custody-related
issue along the lines of those described in S.W.D., and does not require
consideration of the Section 5328(a) factors. However, if the court changes,
or is asked to change, the underlying form of custody following remand, the
Section 5328(a) factors must be discussed.



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agreement because she believed that her chances of opposing the relocation

successfully were “minimal.”   Id. at 5.     Counsel did not state that Mother

supported Father’s relocation, nor did he state that Mother had no objection

to the relocation. To the contrary, counsel made it clear during the hearing

that he was not able to “appropriately state what her position is.” Id. at 3.

      It follows that the trial court erred by granting Father’s proposed

relocation without taking testimony. As argued by Mother in her brief, “[t]he

party proposing the relocation has the burden of establishing that the

relocation will serve the best interest of the child[.]”      23 Pa.C.S.A. §

5337(i)(1). Here, the trial court did not hold Father to his burden of proof,

and Father did not present any evidence at all that his proposed relocation

would be in the Children’s best interests. While the court addressed each of

the Section 5337(h) factors in its opinion, the court’s findings are completely

without evidentiary support.     This Court may not accept a trial court’s

findings unless those findings are supported by competent evidence of

record.   V.B., 55 A.3d at 1197.     Accordingly, we must vacate the order

granting Father permission to relocate to Huntingdon County, and remand

this matter for a new relocation hearing.

      We next address Mother’s third issue on appeal, in which she argues

that the trial court erred by modifying the existing custody order without

requiring Father to file a petition for modification of custody. Mother’s Brief

at 17. Mother directs our attention to Pennsylvania Rule of Civil Procedure

1915.17(f), which provides as follows.

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       (f) If the party proposing the relocation has received notice of
       objection to the proposed move after serving a notice of
       proposed relocation as required by 23 Pa.C.S. § 5337 et seq.,
       the party proposing relocation shall file:

       (1) a complaint for custody or petition for modification, as
       applicable;

       (2) a copy of the notice of proposed relocation served on the
       non-relocating party;

       (3) a copy of the counter-affidavit indicating objection to
       relocation; and

       (4) a request for a hearing.

Pa.R.C.P. 1915.17(f).

       Mother is correct that Rule 1915.17(f) required Father to file a petition

for modification of custody after receiving her counter-affidavit opposing

relocation.     Accordingly, on remand, Father must file a petition for

modification before any relocation hearing takes place.2

       Based on the foregoing, we conclude that the trial court erred by

granting Father permission to relocate without taking testimony.             On

remand, Father must comply with Rule 1915.17(f) by filing a petition for

modification of custody. After Father files the petition for modification, the

____________________________________________


2
  We observe that Rule 1915.17(g) provided Mother with the option to file
her own petition for modification of custody if Father failed to do so. See
Pa.R.C.P. 1915.17(g) (“If the non-relocating party has been served with a
notice of proposed relocation and the party proposing relocation has not
complied with subdivision (f) above, the non-relocating party may file: . . .
[a] petition for modification[.]”). Nonetheless, Mother’s decision not to file a
petition does not excuse Father’s failure to comply with the mandatory
language of Rule 1915.17(f).



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court must conduct a new hearing, during which Father may present

evidence in support of his requested relocation.   Only then may the court

grant or deny permission to relocate.

     Order vacated. Case remanded for further proceedings consistent with

this Memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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