Opinion
J. A04009/16 No. 1226 WDA 2015
07-08-2016
N.M.Y., Appellant v. J.S.Y.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 13, 2015, in the Court of Common Pleas of Washington County
Civil Division at No. 2007-7233 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
N.M.Y. ("Mother") appeals from the order dated July 10, 2015, and entered July 13, 2015, in the Washington County Court of Common Pleas, which denied her petition to relocate from Canonsburg, Washington County, Pennsylvania, with C.Y. ("Child"), born in August of 2006, to Danville, Montour County, Pennsylvania, subsequent to objection of J.S.Y. ("Father"). After review, we affirm.
While the order was dated and filed July 10, 2015, Pa.R.C.P. 236 notice was not provided until July 13, 2015. See Frazier v. City of Philadelphia , 735 A.2d 113, 115 (Pa. 1999) (holding that "an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given").
The factual and procedural history was set forth by the trial court as follows:
Since infancy [Child] has primarily resided with his mother. The parties separated when [Child] was approximately nine (9) months of age. On September 21, 2007 the parties executed a property settlement agreement (hereinafter "PSA"). Paragraph 17 of the PSA provided [Mother] with both "legal and primary custody" of [Child]. According to the PSA, [Father] is to have [Child] one evening during each week, one day each weekend, and for "reasonable times on holidays." The specific dates and times for [Father] to exercise his partial custody was "to be agreed upon by the parties." (See Exhibit 1, p. 7).
In the practical performance of this agreement, [Child] has spent much more time with [Father] and his family. Testimony revealed that [Child] was spending every weekend at his paternal grandmother's home, where [Father] would visit him. This schedule provided [Father]'s family more time with [Child], [Mother] with a consistent child care option for [Child] and [Child]'s maternal grandparents with "some relief" from regular child care duties.
On January 7, 2008 the Honorable Janet Moschetta Bell issued a decree of divorce for the parties. No custody litigation between the parties occurred until May 13, 2015 when [Father] filed an objection to [Mother]'s "desire" to relocate.
On May 20, 2015, [Mother] filed a "Notice of Relocation." [Mother]'s notice indicated that she wished to relocate to Dannville [sic] and intended to do so "upon Court Approval (sic) or by June 23, 2015." The reasons proffered for relocation were that [Mother] had a new job opportunity and she "would like to continue her relationship with Dr. [S.-C.]" She further indicated that she intended to reside with [Dr. S.-C.] and his daughter [A.]
On May 27, 201[5] [Mother] filed a petition to relocate. [The trial] court scheduled a hearing which took place on July 2, 2015. At the hearing the Court
received testimony from the parties, [B.J.P.], paternal grandmother, [J.C.], paternal great aunt, [J.P.], [Father]'s "significant other," and interviewed [Child].Trial court opinion, 7/10/15 at 1-3.
By order dated July 10, 2015, and entered July 13, 2015, the trial court denied Mother's petition for relocation. Thereafter, Mother presented a petition for reconsideration, which was denied by order dated July 30, 2015. Additionally, by interim order dated July 30, 2015, and entered July 31, 2015, the trial court set forth a custody schedule pending further order. Then, on August 10, 2015, Mother filed her notice of appeal and concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
There is no indication whether the trial court ever gave notice pursuant to Pa.R.C.P. 236 with regard to this order.
The trial court provided that Mother shall have primary physical custody of Child, and Father shall have partial physical custody every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m. with his periods of partial physical custody overseen by paternal grandmother. Moreover, custody exchanges shall occur within Washington County, and Child shall remain a resident of Washington County. (Interim order, 7/30/15 at 1-2.)
Mother, through counsel, raises the following 14 issues for our review:
1. Did the trial court commit legal error in determining that the minor child's relationship with other significant persons outweighs the relationship with Appellant?
2. Did the trial court commit legal error by placing more weight on the relationship of the minor child with Paternal Grandmother over that of the relationship with Appellant?
3. Did the trial court commit legal error in speculating how that the minor child may experience separation from substitute primary care givers who are also part of his paternal and maternal extended families?
4. Did the trial court commit legal error by determining that it is not feasible to preserve the minor child's relationship with Appellee?
5. Did the trial court committed [sic] legal error in determining that parental conflict exists to the level that a negative impact to the father-son relationship will not be mitigated if relocation was permitted?
6. Did the trial court commit legal error by determining that the enhancement of the minor child's life was not clearly demonstrated?
7. Did the trial court commit legal error determining that no long-term commitment exists between Appellant and her significant other, Dr. [S.-C.]?
8. Did the trial court commit legal error in determining that the travel distance between Canonsburg and Danville would eliminate Appellee's chance to regularly attend the minor child's school and sports activities?
9. Did the trial court committed [sic] legal error by determining that the minor child was safe in the care of Appellee despite his serious drug and alcohol issues?
10. Did the trial court commit legal error in determining that Appellant believed that she had ultimate control over the parties['] custody schedule, as Appellant had legal custody of the minor child?
11. Did the trial court commit legal error by not permitting relocation of the minor child as Appellant believes that she proved that relocation will serve the best interest of the child?Mother's brief at 5-7 (footnote added).
12. Did the trial court commit legal error by determining that the relocation would significantly impair Appellee's ability to exercise custodial rights?
13. Did the trial court committed [sic] legal error by relying upon C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012) in determining that relocation should not be permitted?
14. Did the trial court commit legal error by not properly applying the Relocation Factors pursuant to Section 5337(h)?[]
In his brief, Father contends that Mother failed to reproduce the transcript, and that her argument is void of any legal authority and analysis. (Father's brief at 13.) As the transcript of the hearing of July 2, 2015, was included as part of the certified record and available to this court for review, we find no prejudice. Further, while Mother's brief is devoid of specific citation to the record or supporting legal authority, we are able to discern Mother's argument. We therefore review Mother's claims on the merits.
Our standard of review with regard to a custody matter is well settled:
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.
E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).
V.B. v. J.E.B., 2012 PA Super 200, 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
"When a trial court orders a form of custody, the best interest of the child is paramount." S.W.D. v. S.A.R., 2014 PA Super 146, 96 A.3d 396 (Pa. Super. 2014) (citation omitted). The factors to be considered by a court when awarding custody are set forth at 23 Pa.C.S. § 5328(a).
Section 5328 provides as follows:
(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.
(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.
23 Pa.C.S.A. § 5328(a).(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.
Further, in determining whether to grant 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.
(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.
23 Pa.C.S.A. § 5337(h).(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.
As we will address further within, we have found it to be error where a trial court failed to address the Section 5328(a) custody factors, and only addressed the Section 5337(h) relocation factors, despite making a new award of custody. A.V. v. S.T., 87 A.3d 818, 824 (Pa.Super. 2014).
Turning to Mother's first nine issues on appeal, we interpret these issues, at the core, as disputes to the trial court's finding-of-fact and determinations regarding credibility and weight of the evidence. Mother, in essence, questions the trial court's conclusions and assessments and seeks this court to re-find facts, re-weigh evidence, and/or re-assess credibility to suit her view of the evidence. This we cannot do. Under the aforementioned standard of review applicable in custody matters, the trial court's findings-of-fact and determinations regarding credibility and weight of the evidence are not disturbed absent an abuse of discretion. See E.R., 129 A.3d at 527. As we stated in King v. King , 889 A.2d 630 (Pa.Super. 2005):
It is not this Court's function to determine whether the trial court reached the "right" decision; rather, we must consider whether, "based on the evidence presented, given [sic] due deference to the trial court's weight and credibility determinations," the trial court erred or abused its discretion. . . .Id. at 632, quoting Hanson v. Hanson , 878 A.2d 127, 129 (Pa.Super. 2005). After a thorough review of the record, we find no abuse of discretion.
The testimony of Father, Child, Father's extended family and girlfriend, as well as photographic evidence, corroborate the nature and extent of Father and his extended family's significant and meaningful relationship with Child. (Notes of testimony, 7/2/15 at 151-162, 166-172, 188-189, 199-203, 206-207, 213-215, 218-220, 222-225, 235, 237-239, 243-245, 281-283; Defendant's Exhibits A-1 through A-20.) With regard to Father and Child, paternal grandmother testified as follows:
He sees him every Saturday and Sunday. He coaches all his sports teams. Anytime [Child] -- first he wanted to play soccer, he coached both years that he was playing soccer. Then he wanted to do baseball, he's coached spring and fall ball for the last two years. And he sees him on Saturdays and Sundays, sometimes Friday. He also sees him during the week when he has ball practice and ball games.Notes of testimony, 7/2/15 at 153. Paternal grandmother further stated,
Their relationship is very close, loving, affectionate. [Father] is very attentive when [Child] is around, to his needs, and he taught him how to play ball. Any time they are together they are always doing
something, playing ball, playing water balloons, and everything. I mean, they're just very close.Id. at 160. Similarly, aside from being involved in child-rearing activities, such as potty training, paternal grandmother indicated, "I see [Child] from Friday to Sunday. I see him a couple days a week for his ball games. I go to all his school events, open house, stuff like that." ( Id. at 151, 156.) Therefore, she and Child are "very close." ( Id. at 154.) What is more, this is not to ignore Child's relationship with Mother's parents and extended family. ( Id. at 18, 93-94, 97-98, 156, 279-281.) Paternal grandmother, in fact, acknowledged that maternal grandparents are "very involved with [Child] too. In fact, I think [Mother] only has him maybe one, two days a week while she was working and her parents -- he stayed at her parents' house the rest of the time, and then with me on the weekends and [Father]." ( Id. at 156.) After noting the import and extent of Mother's relationship with Child, the trial court stated as follows:
[Father]'s personal involvement in [Child]'s life has not been as extensive. To a degree, the extent of [Father]'s relationship has been limited by [Father]'s life circumstances. He has struggled with alcoholism and has been arrested multiple times for Driving Under the Influence (DUI) and one time for a violation of the Controlled Substances, Drug, Device and Cosmetic Act. According to his testimony on cross examination, his driver's license is suspended and he faces further suspensions due to pending charges for DUI and related traffic offenses to include driving under suspension.
As a consequence, [Mother] has only permitted [Father]'s time with [Child] to be spent under the
supervision of paternal grandmother, [B.P.] The testimony at trial did not indicate that [Child] stays overnight at [Father]'s apartment or visits there.
However, according to [Father], when he visits [Child] at [paternal grandmother]'s home, [Father]'s time with [Child] is predominantly "one on one." They play together. They fish and enjoy the outdoors. [Father] has coached [Child]'s baseball and soccer teams. Numerous photographs corroborated [Father]'s testimony. At various ages, photos offered at trial demonstrate an active, close and affectionate relationship between [Child] and his father. [Father] has not been absent but a regular and real part of [Child]'s life. (See Defendant's Exhibit's A-1, A-2, A-5, A-6, A-12, A-13, A-14, A-15, A-16, A-17, A-18, A-19 and A-20).
Trial testimony from [paternal grandmother] and [paternal aunt] also credibly established the nature, quality and extent of [Child]'s relationships with his extended relatives. In the last three (3) years, [Child] has consistently stayed at his paternal grandmother's home overnight on weekends. This arrangement occurred due to [Mother]'s work schedule that required her to work extended shifts on weekends. [Child] has his own room at his paternal grandmother's home. [Paternal grandmother] indicated that her contact with [Child] is not limited to weekends. She attends his games and school functions. She estimated that she has approximately "200 days a year in face time" with [Child]. According to [paternal aunt], the bond between [Child] and his paternal grandmother is special. His relationship is much more than visiting on holidays and special occasions. [Paternal grandmother] helped to "potty train" him as a toddler. Though not of the Catholic faith, [paternal grandmother] took [Child] to his religious education classes and to his first confession.
Evidence on this issue was not unique to [Child]'s paternal grandmother. Though [Child]'s maternal grandparents did not appear or testify at
trial, testimony indicated they have also provided consistent child care for [Child]. [Mother] conceded that she relied upon [paternal grandmother] for child care because she wanted to provide her parents some relief from their frequent child care duties. Often custody exchanges occur between the grandparents due to the unavailability of the parents. During his interview, [Child]'s demeanor and answers showed a significant level of comfort and familiarity with his grandparents.Trial court opinion and order, 7/10/15 at 5-8.
Further, the evidence of the distance of Danville, Montour County, where Mother proposes to relocate with Child, from the Canonsburg area in Washington County, where both Mother and Father and their extended families currently reside, approximately 234 miles, establishes the difficulty of maintaining the same relationship. (Notes of testimony, 7/2/15 at 28-34, 107, 122-123, 131-133, 165, 192-196, 205-206, 210, 248-249.) As expressed by paternal grandmother, "I mean, I see him all this time. I mean, we would never be able to see him every weekend. We would never be able to see him play ball again. [Father] would never be able to coach him in any sports at all." ( Id. at 165.) This is only further frustrated by Father's recent legal troubles, which may result in electronic home monitoring or even further license suspension. ( Id. at 248-249, 259-260, 270-271.) As suggested by the trial court, although "'a' relationship would be preserved[,]" the relationship "would be a diminished one in comparison to one that has existed for several years." (Trial court opinion and order, 7/10/15 at 11.) Not only did Father and his aunt testify to the negative impact of the relocation on Child, and that Child would be "devastated" and "does not want to go," Child testified that he is "thinking about staying here" due to "[s]eeing, like, my family members and stuff." (Notes of testimony, 7/2/15 at 203-204, 211, 253, 288.)
Additionally, Mother's testimony confirms that she and her significant other are not married or engaged to be married. ( Id. at 137.) Her name is not on the deed to the home in Danville where she proposes to reside with Child. ( Id. at 134-135.) Further, she and her significant other have broken up on several occasions, and during one such time, she dated another male with whom it is alleged she went on vacation. ( Id. at 11-12, 108-109, 247.) Moreover, while Mother introduced evidence related to the school in Danville, Mother acknowledged that she did not present any information which would allow for a comparison of the school district in Danville with Child's current school district. ( Id. at 124.) As stated by the trial court,
[Mother] testified that if permitted to relocate, [Child] will attend the Dannville [sic] Area School District. [Mother] was able to provide some basic information regarding the district such as the first day of the 2015-2016 school year and the start and end times for school each day. As exhibits she offered photographs of the school, Exhibits 11 and 12, a copy of the student handbook, Exhibit 10, and material regarding "Danville Primary School," Exhibit 9. These materials did not include any data on Annual Yearly Progress ("AYP"), PSSA test scores, graduation rates, drop-out rates, the identity of Dannville's [sic] Special Education Director, the availability at Dannville [sic] of speech therapy and
tutoring programs sufficient to meet [Child]'s needs, and other [materials] that would assist the court in comparing Dannville [sic] with Canon McMillan.Trial court opinion and order, 7/10/15 at 8-9.
Likewise, despite Father's drug and/or alcohol issues, Father has not engaged in such activity in the presence of Child. (Notes of testimony, 7/2/15 at 120-121, 187-188, 221-222, 240.) Further, both Mother and Father's girlfriend admitted that protection from abuse orders obtained against Father were not the result of any physical violence on the part of Father. ( Id. at 76, 220-221.) In addition, Child was not a protected party with regard to Mother's order, which did not include a custody provision but to indicate the current order shall not be superseded and that the parties shall use a third party to assist with exchanges. ( Id. at 119-1120; Plaintiff's Exhibit 14 at 2-3.) As the trial court summarized,
On June 9, 2008, by agreement and without admission of abuse, the parties stipulated to the entry of a one (1) year protection from abuse order. [Mother] testified that her reason for doing so was not physical abuse but numerous harassing phone calls and communications from [Father]. The parties' final order did not contain a custody provision. [Mother] conceded that at the time the order was entered she did not believe that [Father] posed a risk of harm to [Child]. [Mother] also testified that she does not permit [Father] to attend functions she holds for [Child]. She indicated that [Father] is disruptive. She explained that he will make unpleasant comments that are derogatory towards her and [her significant other]. [Mother] did not testify that she believed [Father] would harm her or [Child].
Testimony was also received that [Father] assaulted his current "significant other" Ms. [P.] Ms. [P.] testified that she agreed to withdraw charges on [Father] after he successfully completed anger management counseling. Ms. [P.], however, denied that she was physically assaulted. She testified that she contacted police because she wanted [Father] removed from the home they were occupying. Ms. [P.] and [Father] do not live together.Trial court opinion and order, 7/10/15 at 18-19. Thus, after careful review of the record, we determine that the trial court's findings are supported by competent evidence in the record, and we will not disturb them. See E.R., 129 A.3d at 527.
No evidence presented demonstrated that [Child] was placed at risk of harm due to [Father]'s past behavior. Father's abuse of alcohol and his struggle to control his anger provide some concern that his impulsive behavior could be harmful to others. The court finds that [Child] is safe in the care of either party. [Father]'s behavior has not put [Child] at the risk of being harmed. The support system [Father] and [Child] has [sic] provided a significant "safety network" that [Mother] has trusted for regular child care.
Next, with her tenth issue, Mother avers legal error in determining that she believed that she had ultimate control over the parties' custody schedule, as she had legal custody of Child. (Mother's brief at 17.) The trial court referenced Mother's belief that she "could unilaterally alter the parties' custody schedule[,] and that she had ultimate control" as it related to her provision of notice of relocation. (Trial court opinion and order, 7/10/15 at 20.) As such, the court found that "[Mother']s failure to provide the required relocation notice is as much a product of her unilateral approach to the parenting and the custody of [Child] as it may have been her ignorance of the requirements of the relocation statute." ( Id.) Building on this observation, the court noted Mother's resignation from her prior employment in anticipation of relocation and its refusal to provide Mother any presumption in favor relocation as a result, stating, "for a party to unilaterally make decisions premised upon a belief that relocation is a certainty and then to argue or receive a favorable determination because of those decisions, frustrates the purpose of the relocation statute." ( Id. at 20-21.) With this conclusion, we agree. The court further offered:
The Court found [Mother]'s testimony credible when she stated that she felt [she] had the authority to dictate the dates and times of [Father]'s exercise of partial physical custody regardless of the provisions within the parties' PSA. She regularly used the terms "I allowed" and "I permitted" when referring to the amount of partial custodial time afforded to [Father]. At trial, in her petition for reconsideration, and in her tenth (10th) matter complained of on appeal, [Mother] conflated her full legal custody with a right to determine the party's physical custody schedule and relocate without complying with 23 Pa. C.S.A. § 5337.Trial court opinion, 9/9/15 at 4.
Mother, however, "argues that she did have ultimate control because she had legal custody of the minor child. Further, she expanded the custody time with [Father] provided that paternal grandmother was present. . . . [Mother] does not believe she should be punished by controlling the custody rotation as it was necessary to do so to insure the safety of the minor child." (Mother's brief at 17 (emphasis added).) Notwithstanding, we disagree with Mother.
In the instant matter, the trial court made this observation about Mother in examining the tenth relocation factor pursuant to Section 5337(h), "[a]ny other factor affecting the best interest of the child," the catchall factor. (Trial court opinion and order, 7/10/15 at 20.) Importantly, this was subsequent to the court conducting a thorough analysis of all other relocation factors set forth in Section 5337(h). Therefore, there is no evidence that Mother was "punished" as this was not the singular rationale and foundation for the court's denial of relocation, but a supplemental consideration. As such, Mother's claim is without merit.
As we address Mother's eleventh issue below with her fourteenth issue, we proceed to her twelfth issue in which she avers legal error by determining that the relocation would significantly impair Father's ability to exercise custodial rights. (Mother's brief at 18.) In examining this issue, the trial court suggested, in part:
Any change in residence for a child that significantly impairs the ability of a nonrelocating party to exercise custodial rights is considered to be a relocation pursuant to Pennsylvania law. See 23 Pa. C.S.A. § 5322. The distance between [Father]'s home in Canonsburg and [Mother]'s proposed home in Danville is approximately two hundred and thirty (230) miles. The travel time is approximately eight (8) hours by car. The court found that such a distance would impair [Father]'s
ability to exercise custody weekly and participate in [Child]'s extracurricular activities.Trial court opinion, 9/9/15 at 5.
Although the trial court additionally sets forth that Mother waived this issue, as she did not dispute that the move constituted a relocation at the time of the hearing, we do not find waiver as Mother filed a petition for relocation and requested a hearing. See C.M.K. v. K.E.M., 45 A.3d at 425-426 (stating that a petition to relocate and request for a hearing does not foreclose litigation on the issue of what constitutes a relocation).
Mother argues that Father's rights "were severely limited by his own actions," noting his past drug and alcohol issues, as well as his potential future sentence. (Mother's brief at 18.) Further, Mother asserts that there is no proof of any other involvement by Father in weekly activities, other than with baseball, which is a seasonal sport. ( Id.) While acknowledging the travel time, Mother posits that "[a]ssuming [Father] would be present for custody exchanges, time in a vehicle is time still spent with the minor child." ( Id.) We disagree with Mother.
Pursuant to 23 Pa.C.S.A. § 5322(a), relocation is defined as a "change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights." In the case at bar, as reflected above, the competent evidence in the record establishes that, despite Father's drug and alcohol issues, Father and Child enjoy a close relationship and that Father is a real and regular presence in Child's life on a weekly basis. (Notes of testimony, 7/2/15 at 153, 160). Irrespective of the consequences of Father's drug and/or alcohol-related arrests and any substitute arrangements offered by Mother, Mother's proposed relocation would interrupt the continuity and frequency of Father's relationship with Child. Therefore, Mother's proposed relocation significantly impairs Father's custodial rights and constitutes a relocation.
With her thirteenth issue, Mother raises error by relying on C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super. 2012). (Mother's brief at 19.) The trial court explained as follows:
In making the decision to deny relocation, the Court quoted C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). The Court pointed out numerous factual similarities between the present case and C.M.K., and noted that the Court in C.M.K. denied relocation. In C.M.K., the Mother requested relocation to a destination that was less than half the distance of what exists in the present case. In C.M.K., Mother proposed that her employment opportunities and extended family in the proposed locale outweighed the ties between the Child and the Father and his extended family. The Court in C.M.K. rejected this argument, finding that the family support system offered by Father's extended family was an important aspect of the child's relationship with Father. See C.M.K. v. K.E.M., 45 A.3d at 428. One major contrast exists between C.M.K. and the present case in that [Mother] does not have extended family in the Danville area.Trial court opinion, 9/9/15 at 5-6.
In citing C.M.K. under the tenth (10th) factor, the Court indicated that independent of the factor analysis that favored denying relocation, prior Courts had denied relocation under similar factual bases.
Nonetheless, Mother maintains that " C.M.K. is clearly distinguishable from the case sub judice . . . . There exist unique factual issues in the case sub judice. The unique factual issues distinguish C.M.K. from this Appeal." (Mother's brief at 19.) We, however, again disagree with Mother.
Here, the trial court did not rely solely on C.M.K. in denying Mother's relocation. Rather, the trial court, noting similarities of a significant support network in the original home location and the reduction of regular weekday custody for the non-relocating party and differences of the lack of a significant support network in the proposed new location, utilized C.M.K. as further ancillary support for its decision, reached after examining all of the other relocation factors set forth under Section 5337(h). After addressing all of the other factors in great depth and detail, the trial court then additionally noted the similarities between the instant matter and C.M.K., which supported its decision, along with several other considerations, under the tenth catchall factor. Mother's claim is, thus, again, without merit.
Lastly, with her eleventh and fourteenth issues, Mother alleges trial court error by not permitting relocation, as she believes that she proved that relocation will serve the best interest of Child, and trial court error by not properly applying the relocation factors pursuant to Section 5337(h). (Mother's brief at 17, 19.) Mother asserts that "she proved that relocation will serve the best interest of the child." ( Id. at 18.) Similarly, Mother contends that "the evidence and testimony offered at the July 2, 2015, Relocation Hearing establishes that all ten factors are in her favor for permitting relocation." ( Id.)
As we construe these issues, Mother again questions the trial court's findings of fact and determinations regarding credibility and weight of the evidence. As previously set forth, under the aforementioned standard of review applicable in custody matters, these are not disturbed absent an error of law or abuse of discretion. See E.R., 129 A.3d at 527. Upon review, we find no error of law or abuse of discretion.
In the case at bar, the trial court exhaustively and reasonably analyzed and addressed each factor under Section 5337(h). ( See trial court opinion and order, 7/10/15 at 5-23.) After careful review of the record, we determine that the trial court's findings regarding the relocation factors set forth in Section 5337(h) are supported by competent evidence in the record, and we will not disturb them. See E.R., 129 A.3d at 527.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/8/2016