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[U] N.P.W. v. N.R.W.

Superior Court of Pennsylvania

June 27, 2013

N.P.W., Appellant
v.
N.R.W., Appellee N.P.W., Appellant
v.
N.R.W., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order August 16, 2012, October 18, 2012 In the Court of Common Pleas of Westmoreland County Domestic Relations at No(s): 1745 of 2011-D, 1745 of 2011-D.

BEFORE: BOWES, DONOHUE, and MUNDY, JJ.

MEMORANDUM

BOWES, J.

In these consolidated appeals, N.P.W. ("Father") appeals from the August 16, 2012 order granting permission for N.R.W. ("Mother") to relocate with the parties' three minor children to Wheeling, West Virginia, and the October 18, 2012 custody order wherein the court outlined Father's periods of partial physical custody. We vacate both orders and remand.

Three children were born of Mother and Father's marriage: two sons, N.A.W. and C.B.W., ages ten and nine, respectively, and a three-year-old daughter, N.R.W. The family remained intact until August 2011, when Mother obtained a PFA against Father granting her sole custody of the children and exclusive possession of the marital home in North Huntingdon, Westmoreland County. On August 31, 2011, Father filed a custody complaint seeking primary custody of the children. Mother responded by filing both a notice pursuant to 23 Pa.C.S. § 5337(c) of her proposed relocation to Wheeling and a counter-complaint for primary custody. Father returned the counter-affidavits regarding relocation indicating his objection to the proposed relocation and requesting a hearing on the matter. Over the next several months, the parties shared legal and physical custody pursuant to a series of interim orders. Generally, the parties had alternating three-to-four-day periods of custody.

The trial court did not address the countervailing custody complaints independently. Instead, following five non-consecutive days of trial between April and August 2012, the trial court entered an interim custody order on August 16, 2012, wherein it awarded Mother primary custody, permitted her to relocate to Wheeling with the three children, and granted Father weekend custody between 10:00 a.m. Saturday and 5:00 p.m. Sunday. Significant to our disposition herein, the trial court's concurrently filed memorandum reveals that the court considered only the sixteen best-interest factors delineated in 23 Pa.C.S. § 5323(a) in reaching its determination. Trial Court Opinion and Order, 8/16/12, at unnumbered 6-7. There is no indication that the trial court considered the ten statutory factors that are specific to relocation cases under 23 Pa.C.S. § 5337(h).

Throughout its memorandum, the court expressed its position that the ideal scenario would have the parties continue to share physical custody in North Huntingdon. Specifically, the court reasoned,

The most desirable arrangement would be for [Mother] to live in North Huntingdon; in such a case, a sharing schedule could be established and each parent would be able to utilize their strengths and best qualities in meeting the children's needs; furthermore, the children's therapies and other services could be more easily facilitated.

Id. at 5. Nevertheless, the court found the "safer course" would be to award Mother primary physical custody and permit her to relocate. Id. at 6-7.

As the trial court primarily was concerned with resolving the relocation issue in sufficient time for the children to prepare for the approaching academic year, it did not fashion a specific custody arrangement beyond stating in its memorandum, "Father will be awarded the majority of the weekends, including extended school weekends, half of school holidays and a majority of the summer school vacation." Id. at 7. The court envisioned drafting a "full and complete custody schedule" after reviewing the children's elementary school calendar. Id. at 8.

Father filed a notice of appeal from the court's relocation order on September 12, 2012.[1] That appeal was assigned Superior Court docket number 1414 WDA 2012. Father apparently followed his notice of appeal with two more filings in the trial court: 1) an emergency petition seeking shared physical custody if he decided to relocate to Wheeling; and 2) a motion to re-open the record so that he could present rebuttal testimony.[2]Recognizing that Father's notice of appeal from the prior interim order was premature, on October 18, 2012, the trial court entered a custody order reiterating its award to Mother of primary physical custody of N.A.W., C.B.W. and N.R.W., and delineating the full custody schedule. Pursuant to that arrangement, Father received physical custody on alternating weekends during the school year, alternating weeks during the summer, and certain holidays. In addition, the court scheduled a December 12, 2012 hearing on Father's petitions for special relief. However, prior to that hearing, on November 7, 2012, Father filed a second notice of appeal which we assigned docket number 1737 WDA 2012 and consolidated sua sponte with the prior appeal listed at 1414 WDA 2012. This appeal challenged the trial court's custody order entered on October 18, 2012. Father subsequently filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised eighteen allegations of error based on the trial court's consideration of the sixteen best-interest factors. Meanwhile, on December 12, 2012, the trial court issued an order dated December 10, 2012, granting Father's request to cancel the hearing scheduled for his then-pending petitions for special relief.

In this ensuing consolidated appeal, Father levels thirty-three allegations of error in his statement of questions presented, which he addresses in thirteen separate arguments. Father challenges both the trial court's best-interest determination under § 5328(a) and its misapplication of the relocation factors outlined in § 5337(h). For the following ...


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