A.P. v. R.P. (memorandum)
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J-S01030-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA A.P. Appellee v. R.P. Appellant No. 2341 EDA 2012 Appeal from the Order Entered August 8, 2012 In the Court of Common Pleas of Pike County Domestic Relations at No(s): 175-2011-CV BEFORE: BENDER, J., LAZARUS, J., and COLVILLE, J.* MEMORANDUM BY LAZARUS, J. Filed: March 15, 2013 R.P. ( Father ) appeals from the order entered in the Court of Common Pleas of Pike County granting A.P. ( Mother ) primary physical custody of their minor child, granting Father partial physical custody, and granting the parties joint legal custody. After careful consideration of the parties briefs, the relevant case law and the certified record on appeal, we conclude that the Honorable Gregory H. Chelak has properly disposed of Father s claims on appeal and we affirm the order based on Judge Chelak s opinion. The child, A.P., was born on September 22, 2008 in Middletown, New York. Shortly after his birth, the parties moved to Greeley, Pike County. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S01030-13 Father was employed as a federal corrections officer, and Mother was a homemaker and A.P. s primary caretaker. On January 24, 2011, Mother filed a complaint in divorce and custody.1 That same day Mother and A.P. moved to Greenville, New York, approximately two hours away, to live with her sister and her sister s husband and their two children. Mother left a note for Father, advising him of this. Father filed an answer and a counterclaim, which included a count for custody. He did not object to Mother s move. Thereafter, when the parties appeared for a hearing, they stipulated to an interim custody arrangement. Pursuant to that arrangement, Mother would have primary physical custody of A.P. in New York, and Father would have partial physical custody every weekend. The court entered the interim order on April 25, 2011, and scheduled a status conference for May 23, 2011. Following a three-day custody trial, the trial court determined that awarding Mother primary physical custody was in A.P. s best interests. The court found both Mother and Father were capable parents, but concluded that Mother was better able to provide the requisite stability and extended family relationships that would benefit A.P. The court noted that A.P. is an only child and is close to his maternal cousins, with whom he shares a ____________________________________________ 1 Mother filed her custody action on January 24, 2011, the date on which the new Child Custody Act took effect. See 23 Pa.C.S.A. §§ 5321-5340. -2- J-S01030-13 bedroom. The court also noted that Mother works part-time, with flexible hours, and that her sister is available to care for A.P. when Mother is working. The court awarded Father partial physical custody every other weekend from Thursday until Sunday and granted the parties shared primary legal custody. The court entered a detailed final custody order on August 8, 2012. Father filed this appeal. Father raises the following issues for our review: 1. Whether the trial court committed an error of law by failing to consider any factors for relocation under 23 Pa.C.S.A. § 5321 et seq. when Mother relocated without any notice and without ever filing a petition to relocate, even though she had retained counsel prior to relocating? 2. Whether the trial court erred or abused its discretion in weighing and determining the enumerated factors set forth in 23 Pa.C.S.A. § 5328 of the Pennsylvania Custody act, when it determined the best interests of the child would be served by awarding primary physical custody to Mother? 3. Whether the trial court erred or abused its discretion when it ignored the court-appointed custody evaluator s recommendation that Father be awarded primary custody on the basis that the evaluator relied on education factors based on statistical data, when in fact the expert also relied on the negativity of the Mother s relatives with whom she and the child were residing and also relied on Mother s proposal to limit Father s time with the child, when Father would have offered extensive time to Mother? 4. Whether the trial court erred or abused its discretion when it denied Father s pretrial motion for a physical evaluation of Mother pursuant to Pa.R.C.P. 1915.8? 5. Whether the trial court erred or abused its discretion in failing to find Mother was a flight risk, when she absconded in the past, had a Mexican passport, has taken the child to Mexico on three occasions since the birth of the child and thought of -3- J-S01030-13 staying in Mexico and further took a trip to Florida without telling Father beforehand? In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. A.H. v. C.M., 58 A.3d 823, 824 (Pa. Super. 2012). 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. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (citation omitted). Initially, we note that Father misapprehends the posture of this case with respect to the statutory relocation considerations set forth at 23 Pa.C.S.A. § 5337. The court did not consider a petition for relocation because Father consented to the move. At the initial custody hearing, the parties entered into a stipulated interim order pending a final hearing. Father made no objection to Mother and A.P. residing in New York, and, in fact, he made sure she had a car so that she could facilitate the drop-off and pick-up at a midway point in New Paltz, New York. N.T. Hearing, 4/7/2011, at 3-4. Father testified at that hearing that he agreed to the interim order -4- J-S01030-13 and that he believed the custody arrangement was in A.P. s best interest. Id. at 5. Permission of the court is not required when the parties agree, or when the noncustodial parent acquiesces in the move by failing to request court intervention. 23 Pa.C.S.A. § 5337(b)(1). Here, Father agreed to the move, on the record, and he agreed it was in A.P. s best interest. Moreover, Father failed to make any objection to the interim order or request a relocation hearing. In fact, it was not until September 16, 2011, over five months after entry of the interim order, that Father made mention in his motion for a home evaluation that Mother did not seek court approval for the relocation in violation of 23 Pa.C.S.A. § 5337. See Motion, 9/16/2011, at ¶8; see also 23 Pa.C.S.A. § 5337(c)(3)(xi) ( if the nonrelocating party does not file with the court an objection . . . within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.); 23 Pa.C.S.A. § 5337(d)(3) ( If notice of the proposed relocation has been properly given and no objection to the proposed relocation has been filed in court, then it shall be presumed that the nonrelocating party has consented to the proposed relocation. ). Following the full custody trial, the trial court carefully considered the statutory factors that guide a custody determination, 23 Pa.C.S.A. § 5328(a), and entered a final custody order. After our review, we find no error or abuse of discretion. A.H., supra. The trial court considered the proper statutory factors and its custody order -5- J-S01030-13 is supported by the record. C.R.F., supra. We, therefore, affirm the order based upon Judge Cheluk s opinion and direct the parties to attach a copy of that opinion in the event of further proceedings. Order affirmed. -6-
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