Appeal from the Order entered March 28, 2011 Court of Common Pleas, York County, Family Division No. 2010-FC-002027-03
BEFORE: DONOHUE, OLSON and STRASSBURGER,*fn1 JJ.
Judge Donohue files a dissenting opinion.
DISSENTING OPINION BY DONOHUE, J.:
Because I conclude that the trial court abused its discretion in permitting Mother to relocate to Boston, I respectfully dissent. First, I believe the trial court erred in concluding that the provisions of the new Child Custody Act do not apply. The first docket entry in this matter is Mother's custody complaint, which she filed on November 3, 2010. In her complaint, Mother sought both an award of primary custody of the children and permission to relocate. The trial occurred on March 21, 22, and 24, 2011.
The new Child Custody Act ("the Act") became effective on January 24, 2011. See 23 Pa.C.S.A. § 5321, Credits (stating the effective date of the new Custody Act is January 24, 2011). In drafting this new law, the Legislature intended that "[a] proceeding under the [prior custody act] which was commenced before the effective date of this section shall be governed by the law in effect at the time the proceeding was initiated." 2010 Pa. Legis. Serv. Act 2010-112 (H.B. 1639) (emphasis added). In E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011); this Court recently considered the meaning of the word "proceeding" as used in this statute:
This latter directive is susceptible to at least two interpretations, depending upon the meaning assigned to the term 'proceeding.' If a 'proceeding' refers to the entirety of a custody action, i.e., from the initial filing of a request for custody and including all subsequently decided issues (e.g., requests for relocation, modification, and enforcement), then the directive would require the application of the provisions of the former Child Custody Act [23 Pa.C.S.A. §§ 5301-5315, repealed] for any custody case filed prior to January 24, 2011. If, on the other hand, a 'proceeding' is distinguished from a custody 'action,' such that various 'proceedings' (e.g., for relocation, modification, and enforcement) take place within the context of a custody 'action,' then all such proceedings initiated after January 24, 2011 would be governed by the new Act--even if the original custody action was filed prior to its January 24, 2011 effective date. We note that the new Act does not expressly define the term 'proceeding.' To the contrary, it appears to use the terms 'action,' 'proceeding,' and 'matter' interchangeably. See, e.g., 23 Pa.C.S.A. § 5323 ('an action under this chapter'); § 5327 ('any action regarding the custody of the child'); § 5331 ('a contested custody proceeding'); § 5335 ('the custody proceedings'); § 5321 ('any child custody matter'); § 5340 ('a child custody matter').
The object of statutory interpretation is to ascertain and effectuate the intent of the legislature.
Pa.C.S.A § 1921. We must assume that the legislature did not intend an absurd or unreasonable result, and in this regard we may consider the practical consequences of a particular interpretation. Id. at § 1922; Commonwealth v. Daikatos, 708 A.2d 510, 512 (Pa. Super. 1998). With these principles in mind, in our view the legislature intended to distinguish between an 'action' for custody and subsequent 'proceedings' in connection therewith. This interpretation provides for the broadest possible application of the procedures and legal standards in the new Act. Under the alternative interpretation, the provisions of the old Act (repealed under section 2 of the new Act) would continue to apply to all aspects of every custody action filed before January 24, 2011--and would continue to apply in those actions for many years into the future, an absurd and unreasonable result. Because in our view the legislature intended for the provisions of the new Act to apply to all matters relating to child custody after the Act's effective date, the new Act applies to all custody proceedings commenced after January 24, 2011.
As this excerpt makes clear, our focus in E.D. was to determine what the Legislature intended by use of the word "proceeding". Our conclusion was driven by the recognition that the Legislature intended the terms of the Act to have the broadest impact possible; thus, we distinguished between the filing of the initial action and the discrete proceedings that occur in connection with the overarching custody action.
The Majority and Judge Strassburger in his concurring and dissenting memorandum conclude that because Mother filed her relocation petition prior to the effective date of ...