J-A05045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Z.L.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
        Appellee

                     v.

E.G.,

        Appellant                                    No. 2311 EDA 2015


                   Appeal from the Order Entered July 1, 2015
               In the Court of Common Pleas of Delaware County
                  Domestic Relations at No(s): No. 2013-3831


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 13, 2016

        E.G. (“Mother”) appeals from the order entered on July 1, 2015, in the

Court of Common Pleas of Delaware County by the Honorable Ann A.

Osborne awarding Z.L. (“Father”) primary physical custody of G.L., (born in

July of 2009) and J.L., (born in May of 2011)(collectively “the Children”),

awarding Mother partial physical custody of the Children and denying

Mother’s petition for relocation, pursuant to 23 Pa.C.S.A. § 5337(h). Upon

our review of the record, we affirm.

        Mother currently resides with her mother in Virginia Beach, Virginia

where she works as a server.         Father currently resides in Wallingford,

Pennsylvania and is employed at a furniture company. On April 23, 2013,

Father filed a Complaint for Custody seeking primary physical custody and

shared legal custody of the Children. On April 26, 2013, Father filed an


*Former Justice specially assigned to the Superior Court.
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emergency petition to prevent the Children from relocating to Virginia.

Father’s emergency petition was denied, and a custody hearing was

scheduled for June 4, 2013.       On August 15, 2013, Mother moved from

Pennsylvania to Virginia.     The Children visited Mother in Virginia during

August and October of 2013, and from December 9, 2013, to January of

2014.

        On January 28, 2014, Father filed an emergency petition for primary

physical custody of the Children, and the next day he filed an amended

emergency petition. Therein, he alleged Mother had retained the children in

Virginia Beach and was not allowing him any telephone contact or visitation

time with them.     In its order of January 30, 2014, the trial court granted

Father immediate temporary custody of the Children and directed that the

Children be removed from Mother’s residence in Virginia.          Following a

hearing, the trial court ordered on February 7, 2014, that its January 30,

2014, order be vacated and granted Father primary physical custody of the

Children.    The order further directed that Mother and Father would have

shared legal custody of the Children.

        On March 3, 2014, Mother filed a petition to relist custody matter. On

April 15, 2014, after a custody hearing, the trial court entered a temporary

custody order granting Father primary physical custody and Mother partial

physical custody of the Children on every third weekend from 6:00 p.m. on




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Thursday until 6:00 p.m. on Sunday.          The trial court also granted Mother

and Father joint legal custody.

      On November 10, 2014, Mother filed a pre-trial memorandum and

notice of proposed relocation, and on November 12, 2014, Father filed a

counter affidavit. On November 14, 2014, the trial court held a custody and

relocation hearing.   At the hearing, the trial court heard testimony from

Mother,   Father,   T.L.,   the   Children’s   paternal   grandfather   (“Paternal

Grandfather”), and M.V., Father’s friend. Ultimately, in its order entered on

July 1, 2015, the trial court denied Mother’s petition for relocation and

awarded Father primary physical custody and Mother partial physical

custody of the Children, should Mother choose to remain in Virginia. Were

Mother to return to reside in Pennsylvania, the order provided that she

would enjoy primary physical custody of the Children. The trial court also

ordered that the parties will share legal custody of the children.

      Mother filed a notice of appeal on July 29, 2015.1


1
  Mother did not file her concise statement of matters complained on appeal
with her notice of appeal. On August 10, 2015, this Court issued an order
requiring Mother file her statement of errors complained on appeal by
August 20, 2015. Mother complied on August 19, 2015. Because Mother
timely complied with this Court’s order, and no party claims prejudice as a
result of Mother’s procedural error, we will not quash or dismiss this appeal.
See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009); cf. J.P. v. S.P., 991
A.2d 904 (Pa.Super. 2010) (holding that an appellant waives all issues by
failing to timely comply with the trial court’s direct order to file a concise
statement); J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (holding that the
appellant waived all issues for failing to file a concise statement in
compliance with an order of this Court).


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

     1. Did the [t]rial [c]ourt abuse its discretion and err in denying
     Mother’s [p]etition for [r]elocation as to the following factors
     under 23 Pa.C.S.A. §5337(h)?

           (A) 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 person in the child’s life.

          (B) the age, developmental state, needs of the child, and
          likely impact of the relocation will have on child’s physical,
          educational and emotional development taking into
          consideration any special needs of the child.

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

          (D) 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.

          (E) the mental and physical condition of a party or member
          of a party’s household: There is no evidence that the
          mental and physical condition of either party or any
          members of their households will affect the care of the
          child.

          (F) 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.

          (G) 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.

     2. Did the trial court abuse its discretion and err when reviewing
     the relevant factors that must be considered to determine the
     best interest of the child, which is the subject of a custody
     dispute pursuant to 23 Pa.C.S.A. §5328 as follows?



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            (A) the need for stability and continuity [in] the child’s
            education, family life and community life.

            (B) any other relevant factor. Mother testified, produced
            evidence and Father admitted during the [e]videntiary
            [h]earing [sic]   that   supported     Mother’s   extreme
            concerns    about [F]ather’s sex addiction. Despite same,
            the [trial  c]ourt did not believe Father posed a risk to
            [the C]hildren.

Mother’s Brief at 1-2.
      In custody cases, our standard of review is as follows:

             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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).

      With any custody case under the Custody Act, 23 Pa.C.S.A. §§ 5321-

5340, the paramount concern is the best interest of the child. In applying

the Custody Act, a trial court must determine a child’s best interest through

the consideration of the following sixteen factors:

      § 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



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     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
          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.

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            (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.

      Additionally, in determining whether to permit relocation, the trial

court must consider the following ten factors:


      § 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.


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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(h).

      In her first issue on appeal, Mother argues the trial court abused its

discretion by denying her request to relocate to Virginia with the Children.

Mother’s Brief at 9.    Specifically, Mother contends she did not wish to

relocate the Children to Virginia “due to a momentary whim or with the

intent to be vindictive against” Father, but rather with a desire to protect the

Children from Father’s addiction and proclivity to violence. Id. at 14.

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      Prior to determining whether relocation of the Children would serve

their best interest, the trial court applied each factor required in a Section

5337(h) analysis. As to the first relocation factor, the trial court found that

that “the Children have established a “very close relationship” with their

paternal grandparents and with Paternal Grandfather in particular.         Trial

Court Opinion, 9/17/15, at 4. The trial court found Paternal Grandfather’s

testimony that he has fostered a close bond with the Children and cares for

them on a daily basis to be credible and “quite moving.”      In contrast, the

trial court noted Mother testified she has extended family “all over, including

overseas.” Paternal Grandfather’s words and the presence of other extended

family in the Delaware County area proved to be a significant factor in the

trial court’s decision to keep the Children in Pennsylvania. Id. at 4-5.

      Regarding the second factor, the trial court found that, based on

extensive testimony in the record, the Children “have established lives” in

Delaware County, Pennsylvania. Id. at 5. Specifically, the trial court found:

      G.L. was two years old when she moved to Delaware County and
      J.L. was born in Delaware County. The Children attend school in
      Delaware County and have an established daily routine which
      includes significant time spent with their paternal grandparents.
      Most importantly, G.L. has an Individual Education Program
      (“I.E.P.”) through her school in Delaware County and has made
      major improvements with her cognitive deficiency through this
      I.E.P.
Id.

      The trial court further explained that the third factor “strongly favors

denying Mother’s request to relocate because of the significant distance


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between Virginia and Pennsylvania, the large cost the parties will incur in

travelling that distance for a custody arrangement, and the significant

burden of travel on the two Children.” Findings of Fact and Conclusions of

Law, 7/1/15, at 12.     The trial court did not find the fourth factor to be

relevant in this case and with regard to the fifth factor determined neither

party had acted in any manner to thwart the relationship between the other

parent and the Children.    Id.

      As to the sixth factor, concerning whether relocation will enhance the

general quality of life of the party seeking relocation, the trial court

remarked that after moving to Virginia Beach, Mother obtained employment

at the same chain restaurant where she had worked in Pennsylvania.             It

stressed there was no evidence Mother could not work at a similar venue in

Delaware County. Id. at 13. With respect to the seventh factor, the trial

court found that the “relocation would not enhance the [C]hildren’s lives

since the [C]hildren are well established in their educational and social life in

Delaware County and the move to Virginia offered no benefit for the

[C]hildren with regard to those aspects.”     Id. at 6.   Regarding the eighth

factor, the trial court found that Mother’s reasoning for relocation was

“possible financial issues,” but the Children have lived and established a

home in Pennsylvania.      Custody Order Finding of Facts, 7/1/15, at 13-14.

Moreover, the trial court found that the Children’s lives would be disrupted if




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they were moved from their home in Pennsylvania.          Trial Court Opinion,

9/17/15, at 14.

      As to the ninth factor, a consideration of 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,

      [the trial court] recognized that there was a Protection from
      Abuse Order issued against Father for the protection of Mother
      and her mother. The Order was granted for six months and
      expired in September of 2014. The PFA Order stemmed from an
      event in which Mother and Father were arguing over where the
      [C]hildren would live, which then escalated into Father pinning
      Mother to the bed and choking her. The [trial c]ourt viewed this
      event as a result of an impassioned argument regarding their
      children and does not believe that Father poses a continued
      threat to Mother or a threat at all to the [C]hildren. To [the trial
      c]ourt’s knowledge, since that incident there have been no
      further reported threats of violence by Father toward Mother.

Id. at 7-8.

      Mother argued it is uncontradicted that Father has a sex addiction.

Mother’s Brief at 13.   Mother testified she believed Father was attending

counseling for sex addiction while Father testified that he does not have a

sex addiction.    N.T., 11/14/14, at 171-76; 224-35.           The trial court

acknowledged Mother presented evidence concerning women that Father

“followed” on social media websites and noted that “although the women

were scantily clad, there was no proof that any of the women were underage

or were engaged in illegal activity.” Trial Court Opinion, 9/17/15, at 8. The

trial court found that, while “Father was inclined to view certain types of

photographs or pornography,” Father “did not pose any type of sexual risk to

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the [C]hildren.” Id. Moreover, Father read into the record the findings of

Dr. Catherine Surbeck who had performed a psychosexual evaluation

following a hearing before the Custody master that Father did not meet the

criteria for a sexual disorder nor did she posit Father was at risk to commit a

sexual offense. N.T., 11/14/14, at 222.

      Essentially, Mother’s seeks review of the trial court’s findings of fact

and credibility determinations. This Court’s standard of review, however,

does not permit us to re-find facts, re-weigh the evidence, or impeach the

trial court’s credibility determinations. To the contrary, we may only reject

the trial court’s conclusions if they involve an error of law or are

unreasonable in light of the sustainable findings of the trial court.        See

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012).         Therefore, we

find no abuse of discretion.

      Lastly, Mother argues the trial court abused its discretion and erred

when reviewing the relevant factors that must be considered to determine

the best interest of the Children. Mother’s Brief at 15. Mother argues the

trial court erred in failing to consider the need for stability and continuity in

the Children’s education, family life and community life.       Id. at 15.    In

finding it was in the best interest of the Children to remain in Delaware

County, the trial court stated:

      the [C]hildren have lived in Delaware County most of their lives
      and have an established life here. The [C]hildren attend school
      in Delaware County, have friends in Delaware County, have
      established bonds with relatives in Delaware County, and have

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      had success with overcoming learning deficiencies in Delaware
      County.    Mother did not provide much evidence, if any,
      explaining how moving the [C]hildren to Virginia would benefit
      them with regard to these categories. Mother enrolled G.L. in
      school in Virginia for a few weeks when she visited, but this
      short foray in a Virginia school was a period of instability when
      compared to G.L.’s regular attendance at school in Delaware
      County.

Trial Court Opinion, 9/17/15, at 9.

      Mother also avers the trial court erred in considering the best interest

of the Children when it did not find the evidence presented at trial

concerning alleged Father’s sex addiction posed a risk to the Children.

Mother’s Brief at 15. With regard to factor fifteen, the trial court found there

was no evidence or testimony of physical or mental condition evidence that

would affect the Children. Trial Court Opinion, 9/17/15, at 7. The trial court

found that “[t]here was testimony regarding Mother’s excessive drinking and

there was testimony regarding Father’s viewing of sexual explicit pictures on

social media.” Id. After Father was evaluated by Dr. Surbeck, “there was

no need for treatment and no risk posed to the [C]hildren.” Id.

      Mother   testified   and   presented   evidence    that   Father   viewed

pornographic material which she claimed supported her concerns about

Father’s sex addiction.    N.T., 11/14/14, at 192-94.    The trial court found

that Mother’s testimony “lacked credibility because it was grounded in her

interpretation of documents and was rife with the surmise and personal

opinion grounded on her interpretation of photographic images.” Trial Court

Opinion, 9/17/15, at 6.    The trial court did not see any proof that Father

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posed any sort of risk to the Children. Id. at 9-10. As previously stated, Dr.

Catherine Surbeck found that Father did not meet the criteria for a sexual

disorder nor did Father present a risk for sexual offense. N.T., 11/14/14, at

222.   Furthermore, the trial court analyzed each factor regarding custody

and relocation and found that, as stated above, the factors weighed in

Father’s favor. See Custody Order Finding of Facts, 7/1/15, at 5-14.

       Mother’s last issue on appeal seeks review of the trial court’s findings

of fact and credibility determinations.     As noted above, our standard of

review, however, does not permit this Court to re-find facts, re-weigh the

evidence, or to impeach the credibility determinations of the trial court. We

may only reject the trial court’s conclusions if they involve an error of law or

are unreasonable in light of the sustainable findings of the trial court. See

C.R.F., III, 45 A.3d at 443. We find no abuse of discretion.

       Accordingly, for the foregoing reasons, we affirm the trial court’s order

awarding Father primary physical custody and Mother partial physical

custody of the Children and denying Mother’s petition for relocation,

pursuant to 23 Pa.C.S.A. § 5337(h).

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




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