J-S54029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.H.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

L.H.

                            Appellant                 No. 244 WDA 2016


                    Appeal from the Order January 19, 2016
                In the Court of Common Pleas of Fayette County
                 Civil Division at No(s): No. 2361 of 2014, G.D.


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED AUGUST 26, 2016

       L.H. (“Mother”) appeals from the January 19, 2016 custody order that

denied her petition for relocation and custody modification with respect to

her son, G.H., born in March of 2002, and her daughter, C.H., born in

October of 2004. We vacate and remand in accordance with the following

memorandum.1

____________________________________________


1
  On June 7, 2016, Mother filed an application for relief--motion to strike,
wherein she requests that this Court issue an order striking the appellee
brief of J.H. (“Father”) for being untimely filed. Mother asserts that Father’s
counsel indicated in the certificate of service attached to the brief that it was
served via first class mail on the due date established by this Court’s briefing
schedule, i.e., April 26, 2016.       However, Mother asserts that Father’s
counsel filed the appellee brief on May 2, 2016, and that she received it on
May 4, 2016. We discern no prejudice to Mother by Father’s untimely filing
of his appellee brief. Therefore, we deny Mother’s application for relief.
J-S54029-16


       Mother and Father, the natural parents of G.H. and C.H., were married

in 2002. N.T., 9/18/15, at 97. In February of 2014, the family moved from

New Hampshire to Uniontown, Fayette County, Pennsylvania, where they

resided with Father’s parents in their home.2 Id. at 99, 165. The parties

enrolled G.H. and C.H. in the Laurel Highlands School District. Id. at 101.

In November of 2014, Mother and Father separated.          On December 19,

2014, following a complaint for custody filed by Father, the trial court issued

an agreed-upon order, granting Mother and Father shared legal and equally

shared physical custody on an alternating weekly basis.

       On June 20, 2015, Mother married J.D.D. (“Stepfather”) and moved to

Sharpsburg, in Allegheny County. Id. at 96, 131-132. The parties modified

the custody order at that time, without court intervention, with Father

exercising primary physical custody, and Mother exercising partial physical

custody every weekend.

       On August 3, 2015, Mother filed a “petition for relocation and custody

modification.” In the petition, Mother asserted that she currently lives in the

Fox Chapel School District in Sharpsburg, which is located “a short distance

outside of the City of Pittsburgh” and approximately 70 minutes from

Father’s residence in Uniontown, in Fayette County. Petition, 8/3/15, at ¶¶
____________________________________________


2
  In the fall of 2002, the parties, along with G.H., who was less than a year
old, moved from Pennsylvania to Maine and then to New Hampshire. They
did not return to Pennsylvania until 2014. N.T., 9/18/15, at 75-77.




                                           -2-
J-S54029-16


1, 19. In addition, Mother asserted that Father has a history of “psychotic

episodes”, one of which resulted in the court granting a Protection from

Abuse (“PFA”) order on her behalf and in criminal charges currently pending

against him.    Id. at ¶¶ 12-14.     Finally, Mother asserted that Father has

attempted to interfere with her custodial time.     Mother requested primary

physical custody.

      On August 17, 2015, Father filed a counter-affidavit wherein he

objected to both relocation and modification of the custody order. A hearing

occurred on September 18, 2015.           Mother testified that she requested

primary physical custody so that G.H. and C.H. can attend the Fox Chapel

School District, which she described as “a really top-rated school.”     N.T.,

9/18/15, at 102. She acknowledged that C.H. has done well academically in

the Laurel Highlands School District. Id. at 103. Mother testified that G.H.

used to do very well academically, and he had been in honors classes in the

Laurel Highlands School District. Id. at 104. She implied that his academic

achievements have decreased since living in Pennsylvania. Id.

      G.H., then age thirteen and in eighth grade, testified in camera that he

used to be an honors student, but not at present. Id. at 20. He testified as

follows on inquiry by the trial court:

      THE COURT: [I]t seems like you been kind of stuck in the middle
      here with your parents, and that’s a bad place to be. What
      concerns me is that you were an honors student and now you
      seem like you’re a very sensitive young man and sometimes
      your grades fail when you have so much going on emotionally in
      your life. . . .

                                         -3-
J-S54029-16



                                           ...

       THE WITNESS: I get anxious a lot at my mom’s house. I get,
       like, hyper anxious, like, I can’t think well, and it’s mainly
       because, it’s like, why am I here? I don’t understand any of
       this. That’s my main issue with focusing mostly.

       THE COURT: And you feel that that is carrying over into your
       school [work]?

       THE WITNESS: Yeah.

Id. at 27-28.

       G.H. resided in his paternal grandparents’ home, along with Father and

C.H. He explained that he wants to continue residing with Father, and that

he is not “a fan of [Stepfather] and his kids.”3,4 Id. at 12. He expressed the

desire for Father to have sole physical custody because, in part, “my mom

usually never has plans that consider me on the weekends.” Id. at 14. G.H.

explained that Mother did not tell him and his sister that she was getting

married, and that she did so “without even considering us, I mean, it kind of

hurts.” Id. at 15.



____________________________________________


3
  Father testified that the weekend following the custody hearing he will be
moving to a new home within a mile of the paternal grandparents’ home and
also within the Laurel Highlands School District. N.T., 9/18/15, at 58-59.
4
  Stepfather testified that he has one son, age seven, and two daughters,
ages nine and twelve. N.T., 9/18/15, at 43. He has partial physical custody
of his children on alternating weekends and on alternating Wednesday
evenings for dinner. Id.



                                           -4-
J-S54029-16


       C.H., then nearly eleven years old and in sixth grade, also testified in

camera that she does not “really enjoy going [to Mother’s house]. It’s not

very comfortable. I’m not used to the kids and I don’t like it there.” Id. at

35. C.H. explained, “I haven’t known those people for very long at all and I

don’t have my own room, I share one with my brother and, like, I just don’t

feel comfortable.”5 Id. She explained that she would also like to reside with

Father because “I love my school and my father always has time to -- he

goes to work, but when he gets home I enjoy being with him, he’s fun, and I

don’t feel comfortable in Pittsburgh.” Id. at 38.

       On January 19, 2016, the trial court issued the following order: “the

Petition to Relocate is DENIED. As the parties have modified by themselves

the present Custody Order due to the distance now between the parties, the

Court will upon presentation, sign a new Order reflecting the current custody

agreement.” Order, 1/19/16 (emphasis in original).

       On February 16, 2016, Mother timely 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 that same date, Mother filed a motion for

reconsideration.     By opinion and order dated February 23, 2016, the trial

court, after full consideration of Mother’s claims, denied the motion.
____________________________________________


5
  G.H. and C.H. testified that their bedroom is in the basement at Mother’s
house. N.T., 9/18/15, at 9, 35. Mother testified that she and Stepfather are
considering moving to a larger house that would also be within the Fox
Chapel School District. Id. at 110.



                                           -5-
J-S54029-16


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

         I. Whether the [t]rial [c]ourt abused its discretion in failing to
         adequately address all custody factors pursuant to 23 Pa.C.S. §
         5328(a)[?]

         II. Whether the [t]rial [c]ourt abused its discretion in failing to
         adequately address all custody factors pursuant to 23 Pa.C.S. §
         5337(h)[?]

         III. Whether the [t]rial [c]ourt abused its discretion in failing to
         dispose of Mother’s claim for custody modification[?]

         IV. Whether the [t]rial [c]ourt erred in its factual findings not
         supported by the record[?]

Mother’s brief at 4.

         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).

         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 that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

                                        -6-
J-S54029-16


     Instantly, we begin with Mother’s first and third issues on appeal,

which are related. She argues that the trial court committed an error of law

in failing to address the 23 Pa.C.S.A. § 5328(a) factors and her request to

modify the existing custody order by granting her primary physical custody.

     This Court has explained as follows.

     When deciding a petition to modify custody, a court must
     conduct a thorough analysis of the best interests of the child
     based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
     A.3d 73, 80 (Pa. Super. 2011). “All of the factors listed in
     section 5328(a) are required to be considered by the trial court
     when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
     652 (Pa. Super. 2011) (emphasis in original). Section 5337(h)
     requires courts to consider all relocation factors. E.D., supra at
     81. The record must be clear on appeal that the trial court
     considered all the factors. Id.

     Section 5323(d) provides that a trial court “shall delineate the
     reasons for its decision on the record in open court or in a
     written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice
     of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied,      Pa. , 70 A.3d 808 (2013). Section 5323(d)
     applies to cases involving custody and relocation. A.M.S. v.
     M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).

     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.” M.J.M.
     v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
     denied,    Pa. , 68 A.3d 909 (2013). A court’s explanation of
     reasons for its decision, which adequately addresses the relevant
     factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).

     The relevant statutory provisions are as follows.

                                    -7-
J-S54029-16


     § 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)(1)
         and (2) (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
         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.




                                    -8-
J-S54029-16


            (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).

     § 5337. Relocation.

                                      ...

     (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.



                                     -9-
J-S54029-16


           (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(h).

     In its opinion accompanying the subject order, the trial court expressly

considered all of the Section 5337(h) relocation factors, but none of the

Section 5328(a) custody factors.       The court explained in its opinion

addressing Mother’s petition for reconsideration that, “since this was a

relocation request interpreted to refer to a modification of custody in the

event relocation was granted,” it properly did not consider the Section




                                    - 10 -
J-S54029-16


5328(a) factors. Trial Court Opinion, 2/23/16, at 3. We are constrained to

disagree.

      In D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014), the trial court

issued a custody order granting the mother primary physical custody of the

parties’ children after considering all of the Section 5328(a) custody factors

and all of the Section 5337(h) relocation factors. The parties had relocated

their residences following their separation and divorce. The mother initiated

the custody action, at which time she resided in North Carolina, and the

father in Pittsburgh, Pennsylvania.    On appeal, the father argued that the

court erred by failing to dismiss the mother’s custody complaint because she

did not comply with the relocation procedure in Section 5337(c) by providing

him with timely notice of her intention to relocate the children. We rejected

the father’s argument.

      We explained in D.K. that, “section 5337 is designed to give notice to

a party with custody rights that the other custodial party intends to change

his or her geographical location and a modification of a custody arrangement

will be necessary to allow the relocating party to continue to exercise

custody rights.” Id. at 473. We held as follows.

      [I]n a case such as this, which involves a custody determination
      where neither [parent] is relocating and only the children stand
      to move to a significantly distant location, the relocation
      provisions of the Child Custody Act, 23 Pa.C.S.A. § 5337, are not
      per se triggered and the notice requirement of section 5337(c)
      does not apply. However, in such cases, the trial court shall
      consider the relevant factors set forth in section 5337(h) insofar


                                      - 11 -
J-S54029-16


        as they impact the final determination of the best interests of
        the children.

Id. at 468.

        In this case, despite Mother pleading relocation, we conclude that her

request before the court did not “per se trigger” the Section 5337 provisions.

When Mother filed the subject petition on August 3, 2015, she was already

living in Sharpsburg.      Further, she and Father had modified the existing

custody order due to her relocation whereby Father exercised primary

physical custody, and she exercised partial physical custody every weekend.

As such, Mother’s request was for primary physical custody of G.H. and C.H.,

which would necessitate their change in school districts, and her request

involved only the relocation of the children. Therefore, we conclude that the

trial court erred as a matter of law by failing to consider the Section 5328(a)

custody factors and thereby failing to decide Mother’s custody modification

request. See D.K. v. S.P.K., supra; see also A.V. v. S.T., 87 A.3d at 822.

        We observe that Mother’s request for modification of the custody order

involved the change of residence of G.H. and C.H. to a distant location,

which     would   impact    their   physical,   educational,   and/or   emotional

development, who were then thirteen and nearly eleven years old, and who

implied in their testimony having difficulty adjusting to Mother’s new

marriage and family dynamic.        Therefore, we recognize, pursuant to D.K.,

supra, that the trial court was required to “consider the relevant factors of

section 5337(h) in [its] section 5328(a) best interest analysis.”        D.K. v.

                                       - 12 -
J-S54029-16


S.P.K., 102 A.3d at 477-478.       As we explained in D.K., “several 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).”   Id. at 478.    We hold in this case only that the trial court

erred by considering the Section 5337(h) factors to the exclusion of all of the

Section 5328(a) factors.

      Accordingly, we vacate the January 19, 2016 custody order.            We

remand this matter to the trial court to consider Mother’s request for

primary physical custody. In doing so, the trial court shall consider all of the

Section 5328(a) custody factors and any relevant Section 5337(h) relocation

factor and delineate the reasons for its decision pursuant to relevant

statutory and case law. See A.V. v. S.T., supra; D.K. v. S.P.K., supra; 23

Pa.C.S.A. § 5323(d).       The trial court may receive additional testimony

presented by the parties, if necessary, in thoroughly considering all of the

Section 5328(a) custody factors and any relevant Section 5337(h) relocation

factor.




                                     - 13 -
J-S54029-16


       Order vacated.      Case remanded for further proceedings.    Application

for Relief -- Motion to Strike denied. Jurisdiction relinquished.6

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




____________________________________________


6
 Based on this disposition, we need not address the remaining issues
Mother raises in her brief.




                                          - 14 -
