J-S90002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.M., MOTHER                                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

R.S., FATHER

                          Appellant                    No. 2072 EDA 2016


                 Appeal from the Order Entered June 22, 2016
               In the Court of Common Pleas of Chester County
                      Civil Division at No(s): 2014-06080


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 16, 2016

      R.S. (“Father”) appeals from the custody order entered in the Chester

County Court of Common Pleas, which granted a relocation petition in favor

of L.M. (“Mother”). After careful review, we affirm.

      The trial court set forth the relevant facts and procedural history of

this appeal as follows:

         [Mother] and [Father] were married in 2005. They are the
         parents of three minor children: [N.S] (d.o.b. 1/…/09),
         [A.S] (d.o.b. 10/…/10), and [Ni.S.] (d.o.b. 12/…/12). The
         parties separated in 2014. On June 30, 2014, Mother filed
         a [c]omplaint for [c]ustody of the minor children. After a
         conciliation conference, a custody [o]rder was entered on
         December 10, 2014, granting the parties shared legal
         custody, primary physical custody to Mother, and partial
         physical custody to Father.
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           On October 8, 2015, Father filed a [p]etition to [m]odify
           [c]ustody, and on October 14, 2015, Father filed an
           [a]mended [p]etition to [m]odify [c]ustody.[1] On
           December 22, 2015, Mother served Father with a notice of
           proposed relocation. On January 13, 2016, Father filed a
           [c]ounter-[a]ffidavit regarding relocation. On February 5,
           2016, Mother filed a [p]etition for [r]elocation.

           The parties had a trial before [the trial court] on June 7
           and June 8, 2016, at the conclusion of which I reviewed
           the factors set for[th] at 23 [Pa.C.S.] § 5337(h), and
           ultimately granted Mother’s request to relocate with the
           children to Poolesville, Maryland.

Trial Court 1925(a) Opinion, filed August 26, 2016, at 1-2.

        On June 17, 2016, the trial court granted Mother’s petition for

relocation.2 On June 29, 2016, Father filed a notice of appeal and a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925.

        Father raises the following issues for our review:

           1. Did the trial court err in failing to find that the proposed
           move would significantly impair the ability of the non-
           relocating party (“Father”) to exercise his custody rights?

           2. Did the trial court abuse its discretion and err in its
           conclusion when it failed to consider the impact the
           distance between Father and children would have on
           Father’s future interaction with his children and the

____________________________________________


1
  The petition to modify custody and the amended petition to modify custody
requested the court to add a provision requiring Mother to instruct their au
pair agency or future agencies to place Father on the contact list for any
notifications regarding the children. The parties entered into a stipulation
for agreed order of custody on December 21, 2015 to resolve this matter in
Father’s favor.
2
    This order was docketed on June 22, 2016.



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       feasibility of preserving or developing the relationship
       between Father and the children at this young age[?]

       3. Did the trial court err in failing to find that the evidence
       of the benefits to be gained by the move were adequate to
       meet the burden of showing the relocation would serve the
       best interests of the children?

       4. Did the trial court abuse its discretion and err in its
       conclusion that Mother carried her burden of production on
       the issue of her ability to work remotely [where] Mother
       failed to produce any support for her position that the
       opportunity to work remotely with her current employer
       was limited to a move to Maryland; and not available to
       her at her current residence in Pennsylvania[?]

       5. Did the trial court abuse its discretion and err in its
       conclusion that Mother’s ability to work remotely from
       home in Maryland, five (5) days a week versus her current
       two (2) day a week arrangement at home in Pennsylvania,
       enhanced, significantly or otherwise, Mother’s quality of
       life such that it warranted a fundamental change to
       Father’s relationship with his three children[?]

       6. Did the trial court abuse its discretion and err in not
       considering the difference in the educational opportunities
       afforded to the children in their current location in
       Pennsylvania versus the educational opportunities in
       Maryland[?]

       7. Did the trial court abuse its discretion and err in its
       conclusion that the relocation would enhance Mother’s
       general quality of life financially [where] Mother’s move
       provides no greater employment opportunity and her
       argument that housing was more affordable was
       speculative[?]

       8. Did the trial court abuse its discretion and err in
       permitting the move without requiring notice to Father of
       any specifics regarding her move; including but not limited
       to her specific housing arrangements[?]

       9. Did the trial court abuse its discretion and err in
       concluding that the move provided Mother and children

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         with an emotional benefit and enhanced their quality of life
         [where a]ny emotional benefit to Mother of children from
         the move to Maryland is equally available to the children in
         Pennsylvania and does not warrant a fundamental change
         to the Father’s relationship with his children[?]

Father’s Brief at 13-15.

      In his combined issues, Father argues the trial court erred in

determining that Mother established that the relocation would serve the best

interest of the children pursuant to 23 Pa.C.S. § 5337(h). In his first three

issues, he claims the court erred in determining the move would not impair

his ability to exercise his custodial rights.   Father’s Brief at 20.    In his

remaining issues, Father contends the trial court improperly concluded that

Mother’s move to Maryland would improve Mother and the children’s

financial quality of life. Father’s Brief at 24-25. Father concludes the trial

court’s ruling that granted Mother’s relocation petition exceeded its

discretionary power. We disagree.

      Our scope and standard of review of a custody order are as follows:

         [T]he appellate court is not bound by the deductions or
         inferences made by the trial court from its findings of fact,
         nor must the reviewing court accept a finding that has no
         competent evidence to support it…. However, 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.

                                  *    *    *


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        [O]n issues of credibility and weight of the evidence, we
        defer to the findings of the trial [court] who has had the
        opportunity to observe the proceedings and demeanor of
        the witnesses. The parties cannot dictate the amount of
        weight the trial court places on evidence. Rather, the
        paramount concern of the trial court is the best interest of
        the child. Appellate interference is unwarranted if the trial
        court’s consideration of the best interest of the child was
        careful and thorough, and we are unable to find any abuse
        of discretion.

A.V. v. S.T., 87 A.3 d 818, 820 (Pa.Super.2014) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009)).

     Section 5328 provides an enumerated list of sixteen factors a trial

court must consider in determining the best interests of a child when

awarding any form of custody:

        § 5328. Factors to consider when awarding custody

           (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.


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           (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 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. § 5328(a).

      Before granting a petition for relocation, the court additionally must

consider the following relocation factors:



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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.

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

23 Pa.C.S. § 5337(h).

     Additionally,


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         (1) The party proposing the relocation has the burden of
         establishing that the relocation will serve the best interest
         of the child as shown under the factors set forth in
         subsection (h).

23 Pa.C.S. § 5337(i).

      Further, the court must delineate the reasons for its decision to modify

an existing custody order either in open court or in a written opinion or

order.   A.V. v. S.T., 87 A.3d 818, 822 (Pa.Super.2014).

         In expressing the reasons for its decision, there is no
         required amount of detail for the trial court’s explanation;
         all that is required is that the enumerated factors are
         considered and that the custody decision is based on those
         considerations. A court’s explanation of reasons for its
         decision, which adequately addresses the relevant factors,
         complies with Section 5323(d).

A.V., 87 A.3d at 822-23 (internal citations and quotation marks omitted).

      Here, the record reflects that the court conducted a two day trial to

address Mother’s proposed relocation. After hearing testimony from seven

witnesses, including Mother and Father, the court analyzed, in open court,

the best interest of the child factors and the relocation factors enumerated in

the Child Custody Act.      See N.T., 6/8/16, at 487-489 (discussing best

interest of the Child factors listed in 23 Pa.C.S. § 5328(a)(1)-(16)), 490-

504 (discussing relocation factors listed in 23 Pa.C.S. § 5337(h)). The court

then stated:

         [The] factors do militate in favor of granting the relocation.
         It is extremely difficult for me, but I believe that what I
         have heard is that it will be in the children’s best interest
         to grant this relocation, that it will not significantly or even
         barely impair the amount of custodial time that [F]ather
         has with his children. That it is very possible that, if the

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        parties will work together, he will enjoy greater time with
        his children than he has up to this point.

N.T., 6/8/16, at 505.

     The court further reasoned, in relevant part:

        Mother intends to move to Poolesville, Maryland, a two-
        and-a-half hour drive from Father’s residence in Newtown
        Square, Pennsylvania. The distance is approximately 150
        miles. Mother proposed that the parties meet at a half-way
        point. Mother testified that if she is permitted to move with
        the children to Maryland, she will be flexible with the
        custody schedule if Father requests additional time or a
        change in the schedule….

        Mother’s willingness to drive the children half way to
        Father’s residence and willingness to adjust the custodial
        periods to accommodate Father’s schedule will lessen the
        inconvenience to Father of driving 150 miles during his
        custodial periods….

        In determining whether the move to Maryland would
        significantly impact Father’s ability to exercise his custodial
        rights, I considered the nature, quality, extent of
        involvement and duration of the children's relationship with
        each party. Mother testified that while the parties were
        together, she got the children up in the morning, gave
        them breakfast, drove [N.S.] to school, did all of the
        cooking and cleaning, attended all of the children’s
        extracurricular activities, attended the children’s medical
        and dental appointments and took the children to events
        during the holidays. She stated that Father “was more
        hands off” and “more passive.”…

        [Father] admitted that after the first custody conciliation
        conference he requested a reduction in his custodial time,
        eliminating the provision in the August 14, 2014
        [t]emporary [o]rder that Father have physical custody of
        the children every other Wednesday from 8 a.m. to 8
        p.m.…

        Father testified that he wants to increase his time with the
        children because he now has a more flexible work

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       schedule. He does not have written confirmation from his
       employer agreeing to the flexible work schedule.…

       Since the parties separated, the older children… attend
       tennis and swimming lessons at the YMCA on Saturday
       mornings. Mother stated that she takes the children … to
       the YMCA, stays for the lessons, and drives them home.…
       Mother stated that Father has never attended any of the
       children’s Saturday activities at the YMCA….

       Mother testified that she takes the children to all of their
       doctor and dentist appointments. Since 2014, Father has
       attended only one doctor appointment for the children.
       Mother stated that Father attended one school activity per
       year (Donuts for Dad) and attended two graduation
       [c]eremonies….

       Mother testified that Father has taken one vacation day
       with the children since August of 2014. She wants both
       parties to have increased vacation time with the children….

       I found Mother’s testimony credible regarding the extent of
       Father’s interaction with the children and involvement in
       their daily routine….

       I understand that due to his work schedule, Father could
       not attend school activities and take the children to doctor
       and dentist appointments. However, he does not work on
       Saturdays and has failed to attend even one of the
       children’s Saturday activities. If he truly wanted to
       participate in the children’s sports activities, he would have
       gone to the YMCA on Saturdays and worked it out so that
       there was no confrontation with Mother. … Additionally, in
       the last two years, he could have taken a short vacation
       with the children if spending time with them was extremely
       important to him.

       I found that the proposed move would not significantly
       impair Father’s ability to exercise his custodial rights as he
       had many opportunities in the past to exercise his
       custodial rights and declined to take advantage of those
       opportunities….




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       Mother testified that she presently works three days per
       week at the King of Prussia office, and she works two days
       per week from home in Devon. She asked to work full time
       from her home, but was denied. Mother stated that if she
       moves to Maryland, she can work from home five days per
       week. It would be a lateral move; her rate of pay would
       remain the same. Mother stated that she will have more
       time to participate in afternoon activities with the children
       if she relocates and works from home five days per week….

       Both parties failed to produce documentation from their
       employers regarding their proposed new work schedules
       and arrangements. Thus, I considered the testimony and
       made credibility determinations accordingly….

       I considered the evidence and found that any appreciable
       difference between the school districts is not material….
       Thus, while one district may be ranked higher than
       another, I considered the ages, developmental stages,
       needs of the children and likely impact the relocation will
       have on the children’s physical, educational and emotional
       development, and found that relocating to Maryland would
       not have a detrimental impact on the children’s physical,
       educational and emotional development….

       Mother currently rents a three bedroom apartment for
       $1926 per month. She stated that if she moves to
       Maryland, she can buy a four bedroom townhouse with two
       -and-a-half bathrooms. "We would be able to save almost
       $600 a month every month buying a home in Poolesville
       instead of renting in Devon. From that alone I would be
       able to save up for their college.” (N.T. 6/7/16 at 93-94).
       Mother testified that her monthly mortgage would be
       $1248 plus utilities.

       It was clear that Mother had thoroughly analyzed the
       respective housing costs and her financial capabilities…. l
       credited the concept that the ability to purchase a home
       (as opposed to rent) creates stability for her and for the
       children….

       Mother has family and friends living in Maryland. She
       testified that if she moves to Maryland, she will reside
       nineteen miles from her parents and fourteen miles from

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       her brother and his fiancée. Mother stated [that] the
       children have a close relationship with her parents. She
       stated that her brother, Lij, is her children’s best friend….
       In addition to her parents and brother, Mother has cousins
       and family friends in Maryland.

       Father testified that the children have a close relationship
       with his parents in Pennsylvania. The children have had
       birthday parties at Father’s parents’ house.

       The emotional benefit to the children of being in close
       physical proximity to both sets of grandparents cannot be
       overstated. Father’s parents will have the opportunity to
       see the children during his weekend custodial periods, as
       they do now. Mother stated that if she and the children
       moved to Maryland, Father’s time with the children during
       the school year will increase because he will have them all
       weekend from Friday evening to Sunday evening….

       I considered all of the factors in Subsection 5337(h),
       including (5) the established pattern of conduct of either
       party to promote or thwart the relationship of the child and
       the other party. This category weighed heavily against
       Father.

       Mother testified that [N.S.] told her that Father told the
       children that if they moved to Maryland they would never
       see him again. Father denied that he made that statement
       to the children. Mother testified that Father does not allow
       the children to refer to her as “Mommy” in his presence.
       They must call her “the other person.” Father denied this
       allegation. Mother stated that Father, in front of the
       children, has called her short, fat and ugly.… Father denied
       that he commented on Mother’s appearance or made any
       derogatory remarks about Mother in front of the children….

       Mother stated that during Father’s custodial times from
       2014 until May 2016, Father did not permit the children to
       speak to her by phone….

       Father denied that he prevented Mother from speaking to
       the children by phone during his custodial times….

       Both parties claim harassment from the other party….

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         The friction between the parties was not the overriding
         factor in my decision to grant relocation. Mother’s ability to
         work from home five days per week while the children are
         young will enhance the quality of life for Mother and the
         children. At the same time, relocation to Maryland will not
         significantly impair Father’s relationship with the children
         because he will have added custodial time with the
         children, including full weekends, assuming he takes
         advantage of those opportunities. Father’s relationship
         with the children will not be endangered in any way shape
         or form by the relocation to Maryland; they will continue to
         receive nurturing from him and life instruction from him.

         I considered all of the evidence and testimony and
         determined that Mother met her burden of proving that
         relocation to Maryland would serve the best interests of
         the children. See Anderson v. McVay, 743 A.2d 472
         (Pa.Super.1999) (trial court did not err in allowing mother
         and children to relocate to North Carolina where relocation
         would substantially improve the quality of life for mother
         and the children, mother would be flexible in making
         visitation arrangements, and the visitation arrangement
         would allow Father more total time with the children than
         he had before mother’s relocation).

Trial Court Pa.R.A.P. 1925(a) Opinion, filed August 26, 2016, at 4-18 (most

citations to the record omitted).

      The trial court’s factual findings are supported by the record and

support its factual conclusions.    The trial court’s consideration of the best

interest of the children was careful and thorough, and we see no abuse of

discretion.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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