T.J.F. v. T.L.F. (memorandum)
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J-A05026-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA T.J.F. Appellee v. T.L.F. Appellant No. 1575 WDA 2012 Appeal from the Order September 21, 2012 In the Court of Common Pleas of Erie County Domestic Relations at No(s): 11193-2000 BEFORE: BOWES, J., LAZARUS, J., and COLVILLE, J.* MEMORANDUM BY LAZARUS, J. Filed: March 19, 2013 T.L.F. (Mother) appeals from the trial court s order denying her request for relocation and granting Appellee T.J.F. s (Father) request for primary physical custody of the parties minor children, K.F. and A.F. After careful review of Mother s brief,1 relevant case law and the record on appeal, we conclude that the Honorable Elizabeth E. Kelly has properly disposed of Mother s issues on appeal, as set forth in her Pa.R.A.P. 1925(a) opinion. Therefore, we affirm the trial court s order based on Judge Kelly s decision. On appeal, Mother raises the following issues for our consideration: (1) Whether the court abused its discretion in treating Appellant s move from one county to another as a relocation ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 Father has not filed a brief on appeal. J-A05026-13 when the purposed [sic] move would not significantly impair the ability of [the] nonrelocating party to exercise their custodial rights. (2) Whether the court abused its discretion by not considering all of the factors it is obligated to consider under the Pennsylvania statutes when awarding custody2 and determining what is in the best interests of the children. The parties were married in 1997; they divorced in October 2000. The parties have two children, K.F. (born 8/96) and A.F. (born 4/99) (Children).3 After meeting with a custody conciliation supervisor, the court entered an order, based upon a consent agreement, and awarded the parents shared physical and legal custody of Children, with Mother having primary physical custody and Father partial visitation on alternating week/end days and holidays. Consent Agreement, 2/3/2003. In October 2005, Father filed a ____________________________________________ 2 The scope of review of an appellate court reviewing a child custody order is of the broadest type; the 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. Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. 1992) (citing McMillen v. McMillen, 602 A.2d 845 (Pa. 1992)). 3 K.F. was born out of wedlock to Mother and Father, while A.F. was born of the marriage. -2- J-A05026-13 petition for custody modification, seeking primary physical custody of Children. After a modification conference, the trial court entered an order giving Father increased visitation; however, Mother retained primary physical custody. Order of Court, 11/17/2005. In April 2007, Mother filed a petition to modify the parties existing custody schedule, seeking more weekend time with Children. In response, the parties entered into another consent agreement that slightly increased mother s custodial time; the agreement was made an order of court on May 29, 2007. This 2007 order was in effect until May 2012, when Mother sent notice to Father indicating that she planned to move from her Girard, Pennsylvania (Erie County) home to Guys Mills, Pennsylvania (Crawford County). Father filed a timely counter affidavit, see 23 Pa.C.S.A. §5337(d), objecting to Mother s relocation request as well as a petition to modify the existing custody order. Despite Father s objection, Mother moved to Guys Mills with Children in June, enrolling them in the Maplewood School District just two weeks prior to the start of the school year.4 On September 20, 2012, the trial court held a relocation/custody hearing, see 23 Pa.C.S.A. § 5337(g), after which it denied Mother s request to relocate to Guys Mills, ordered that the Children be returned to Erie County to live with Father, ____________________________________________ 4 Pursuant to section 5337(l) of the Act, [i]f a party relocates with the child prior to a full expedited hearing, the court shall not confer any presumption in favor of the relocation. -3- J-A05026-13 where they shall be enrolled in the Millcreek School District, and granted Father primary physical custody. Relocation The provisions of our Commonwealth s new Child Custody Act (Act), 23 Pa.C.S.A. §§ 5321-40, apply to Mother s inter-county relocation matter. In E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011), our Court held that the Act applied to any proceeding, including a petition for relocation, initiated by a filing made after the effective date of the Act, January 24, 2011. Mother s petition for relocation was filed in May 2012. Here, Thus, the Act, specifically section 53375 which addresses any proposed relocation, controls the trial court s analysis in this case. Mother s issue on appeal concerns the trial court s substantive6 analysis of her request to relocate. Specifically, Mother contends that ____________________________________________ 5 We note that section 5337 of the Act also alters the legal standards that a trial court must consider when ruling on a request to relocate. Under prior practice, trial courts considered relocation requests based upon the threefactor test set forth in Gruber v. Gruber, 583 A.2d 434, 439 (Pa. Super. 1990). Under the Child Custody Act, however, trial courts must consider the ten factors listed in subsection 5337(h). In particular, while the Gruber test required consideration generally of the "potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children," Id. at 439, subsection 5337(h) sets forth a number of specific factors intended to isolate and focus this important inquiry. See E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011). 6 The parties have complied with the procedural requirements for relocation under section 5337. -4- J-A05026-13 because her move to Guys Mills would add only 307 miles to the distance between the parties homes, the court improperly considered this a traditional relocation case. As we have already determined, because Mother s relocation notice was sent after the effective date of the Act, the relocation factors set forth in section 5337 shall control the court s relocation determination. Moreover, the trial court notes in its Pa.R.A.P. 1925(a) opinion, that it considered the statutory definition of relocation in the Act and applied the appropriate section 5337 factors before making its final decision. Relocation is defined in the Child Custody Act as "[a] change in a residence of the child which significantly impairs nonrelocating party to exercise custodial rights. the ability of a 23 Pa.C.S.A. § 5322(a). Under section 5337, the court must consider the following factors when determining whether relocation is warranted: (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. ____________________________________________ 7 Father moved from his home in Erie to Millcreek, Pennsylvania, which further increased the distance between his home and Mother s Guys Mills residence. -5- J-A05026-13 (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.A. § 5337(h). In addition to considering the section 5337(h) factors, a trial court must also give weighted consideration to those factors which affect the safety of the child. Id. The trial court noted that because Mother s Guys Mills residence is approximately 60 miles from Father s new Erie County home in Millcreek, -6- J-A05026-13 Pennsylvania, the total driving distance between the two residences is roughly one hour and fifteen minutes. In fact, the court commented that on one occasion, Father spent almost three hours, round-trip, taking K.F. to school. The court concluded that this increased distance significantly impairs Father s ability to exercise his custodial rights, where he is extremely involved in Children s school events, social activities and sport outings. Overall, Mother failed to prove that living in Guys Mills will serve the best interest of the children, as shown under the factors set forth in section 5337.8 See 23 Pa.C.S. §5337(i)(1). Because Mother s relocation would affect Father s ability to effectively co-parent Children and be a daily source of support (beyond his periods of partial custody), the trial court s order denying Mother s relocation request should be affirmed. See C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012) (even where proposed custody schedule would increase nonrelocating parent s custodial time, Mother s 68-mile relocation request denied because ____________________________________________ 8 The trial court questions Mother s judgment in relocating to Guys Mills so that she could move in with her boyfriend after she had only been dating him for four months. Mother testified that she has had five live-in boyfriends in the past five years. N.T. Relocation/Custody Hearing, 09/21/2012, at 132-34. One of those boyfriends raped Mother s oldest daughter, resulting in an unplanned pregnancy. -7- J-A05026-13 it would break continuity and frequency of [Father s] parental involvement with child).9 Custody Mother further claims that that court abused its discretion by not reviewing all of the factors outlined in section 5328(a) of the Act when it decided to grant Father primary physical custody of Children. In any analysis of a change in custody, the paramount concern must be the best interest of the children. Zoccole v. Zoccole, 751 A.2d 248 (Pa. Super. 2000). Furthermore, the court must consider the 16 factors set forth in section 5328(a) of the Act. It is evident from the record and the trial court s opinion that it considered all relevant factors in arriving at its decision to award Father primary physical custody of Children. The court s decision was well-reasoned and in the best interest of the Children. First, the court noted that Mother s new residence in Guys Mills is cramped eight individuals (including one infant) living in a three-bedroom home, with a converted basement and one functioning bathroom. When Mother s boyfriend has custody of his two other children, there are up to 10 ____________________________________________ 9 We recognize that the trial court may have overestimated the driving distance between the parties residences (Guys Mills to Millcreek). Although Father testified, and the court chose to credit his testimony, that the travel distance between his and Mother s Guys Mills residence is 60-70 miles, it appears that the driving distance is actually closer to 40-44 miles. By the same token, Mother s estimate that the relocation would only increase the parties travel time by 30 miles is on the low end. -8- J-A05026-13 individuals living in the house. bedroom. In Father s home, each child has her own Furthermore, the school district where Mother has Children enrolled offers many fewer electives than the schools in Father s Erie County School District. Children have a good relationship with Father s new wife; Father and stepmother have an active role in Children s educational, extracurricular and spiritual development. structure for Children. Their home provides necessary Finally, because Mother s Girard home is in foreclosure, her moving back to Erie County with Children was not an option; therefore, the court determined that her periods of partial custody would be determined by mutual agreement of the parties, especially where she works exclusively on weekends.10 We conclude that the trial court did not abuse its discretion in either denying Mother s request to relocate or awarding Father primary custody of Children. The decision is clearly in their best interests. Zoccole, supra. C.M.K., supra; We rely upon Judge Kelly s opinion in support of our decision to affirm the underlying order. We instruct the parties to attach a copy that opinion in the event of further proceedings in the matter. Order affirmed. ____________________________________________ 10 While Mother s job may permit her to make approximately $8.00 more per hour by working weekend nights, the court noted that she can change her work schedule to accommodate the new custody arrangement. Moreover, when weighing the other section 5328(a) custody factors, the scales tip in favor of Father having primary physical custody of Children. -9-
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