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

Superior Court of Pennsylvania

June 27, 2013

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


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.




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 reasons, we agree with the latter aspect of Father's argument and remand for further proceedings.

We recently reiterated our scope and standard of review of a custody determination as follows:

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.
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)).

At the outset, we must confront the irregular procedural posture of these appeals and determine whether one, both, or neither of the appeals should be quashed. Although Mother does not assert that either appeal is interlocutory, jurisdiction is one of the few issues that we may address sua sponte. In re J.S.C., 851 A.2d 189, 190 (Pa.Super. 2004). Unless otherwise permitted by rule or statute, an appeal lies from a final order. G.B. v. M.M.B., 670 A.2d 714, 720 (Pa.Super. 1996) (en banc). In custody litigation, a final order is entered after the court has completed its hearings on the merits and the order is intended to constitute a complete resolution of the custody claims pending between the parties. Id.

Upon review of the protracted procedural history, we conclude that both appeals are proper. Herein, Father's appeal listed at 1414 WDA 2012 is arguably interlocutory as the trial court both referred to it as "interim" and stated that it would draft a "full and complete custody schedule" after reviewing the children's school calendar. See Trial Court Opinion and Order, 8/16/12, at 7. However, observing that this Court confronted a similar issue in Vineski v. Vineski, 675 A.2d 722, 723 n.3 (Pa.Super. 1996), and treated a relocation order as final and appealable, even though the trial court had directed the parties to resolve details of a new visitation schedule themselves, we decline to quash the appeal listed at 1414 WDA 2012 as interlocutory. We reach this decision keenly aware that the relocation order resolved the fundamental dispute regarding primary physical custody, permitted Mother to move to Wheeling with the children, and was the basis for the custody arrangement. In addition, we observe that, while the trial court anticipated refining the custody schedule after receiving the elementary school calendar for the ensuing academic year, it neither scheduled nor envisioned additional custody proceedings.

The finality of the trial court's October 2012 order is more difficult to determine because, while the trial court indicated "this final custody order is entered, " and issued a thorough custody schedule, the order also scheduled a hearing to address Father's then-pending petition for special relief and to consider Father's rebuttal testimony relative to the evidence Mother adduced at trial. As the latter consideration necessarily would require the trial court to reopen the record, it is beyond argument that the October 2012 custody order could not be considered final so long as further evidentiary proceedings were contemplated. However, as noted in our recitation of the procedural history, the trial court subsequently canceled the evidentiary hearing. Thus, as this matter currently stands, the October order constitutes a complete resolution of the custody claims. Thus, it is a final order. G.B., supra at 720-721.

Having determined that Father's appeals are proper, we next address the merits of his complaints. In C.R.F., III v. S.E.F., 45 A.3d 441 (Pa.Super. 2012), we held that the new custody law applies to custody proceedings held after January 24, 2011, the effective date of the new Child Custody Act, 23 Pa.C.S. § 5321 et seq., even though the underlying custody complaint was initiated before that date. Herein, Father initiated the custody action after the effective date of the new law. Accordingly, we review the operative orders under that statutory framework. See E.D. v. M .P., 33 A.3d 73, 78 (Pa.Super. 2011) ("Because Father initiated his relocation request after the effective date of the new Act and Mother's request for modification of the custody order followed, the provisions of the new Child Custody Act apply here.").

Herein, the trial court's August 2012 custody order both awarded Mother primary physical custody and permitted her to relocate to Wheeling. Thus, the court was required to comply with both the statutory provisions relating to "ordering any form of custody" and the section concerning "whether to grant a proposed relocation." See 23 Pa.C.S. §§ 5328(a)[3] and 5337(h).[4] This Court has consistently interpreted these statutory provisions as requiring a trial court to express its consideration of the relevant factors on the record. The purpose of this requirement is to facilitate our appellate review of the custody determination. See, e.g., E.D., supra at 81 ("Effective appellate review requires the trial court to consider each of the factors set forth in section 5337(h), and to state both its reasoning and conclusions on the record for our review.").

Upon review of the trial court's rationale in the case at bar, we find that the court erred in granting Mother's motion for relocation without first considering the ten factors that our legislature enumerated in § 5337(h) in order to determine whether the proposed relocation was in the children's best interest. While the court acknowledged its responsibility to consider these statutory factors and sufficiently addressed the sixteen factors enumerated in § 5328(a), it utterly ignored the relocation factors. Indeed, we reproduce the court's relocation analysis in its entirety as follows:

The longstanding patterns of [Father's] disruptive, volatile, difficult behavior leads to the conclusion that the Mother's return to Wheeling is justified by her need for family support. The testimony of her side of the family clearly depicts opportunities for the Mother and the children in terms of family[, ] moral, social and even financial support. In North Huntingdon, she would be somewhat isolated and vulnerable to the pressures of having to cope with the Father. Each parent can function well—though the Mother better—when interaction is limited.

Trial Court Opinion and Order, 8/16/12, at 7.

In E.D., supra, we held that the new custody law mandated that the trial court consider the ten factors listed in 23 Pa.C.S. § 5337(h) prior to addressing a parent's petition for relocation. We also held that the trial court was required to consider the sixteen factors delineated in § 5328(a) in addressing the other parent's countervailing petition to modify the current custody arrangement. Id. at 81-82. We concluded that the record did not reveal whether the trial court actually considered all of the relevant factors in reaching its decision. In discussing the analysis the trial court proffered in its opinion and order, we observed,

Section 5337(h) mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. 23 Pa.C.S.A. § 5337(h). In this case, it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision. To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusions.


Likewise, in C.R.F., III, supra, we concluded that the trial court's failure to address the § 5537(h) relocation factors was legal error. In that case, the mother and father entered a custody decree that awarded equally shared physical custody of their child. Following a brief reconciliation, a second child was born of the marriage and the custody pleading was amended to account for the additional custody. The mother eventually filed a petition to modify the consent order and to permit her to relocate with the children from Washington County to Somerset County. Following an evidentiary hearing, the trial court awarded the mother primary physical custody and granted her petition for relocation.

In resolving the custody matters, the trial court applied the factors outlined in Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990), to determine whether relocation was in the child's best interest. This Court vacated and remanded the trial court's order, granting the mother primary physical custody of both children and permitting her to relocate. In vacating the trial court's custody decision, we observed that the court failed to apply § 5337(h) of the Custody Law to the mother's request for relocation, and that the rationale that the court proffered in support of its decision failed to account for six of the ten factors listed in that section of the statute. We reasoned, "the trial court did not base its decision on an analysis of the [statutory] factors[.]" Id. at 446. Accordingly, we directed the trial court to prepare a decision consistent with § 5337(h) on remand.

As noted supra, the trial court in the instant case thoroughly addressed all sixteen best-interest factors outlined in § 5328(a). It is tempting, at least initially, to conclude that the trial court's comprehensive consideration of these factors satisfied the independent requirement for the court to consider the enumerated relocation factors, which are similar. However, the initial appeal of this position is ephemeral for at least two reasons. First, while significant overlap exists between the two sets of statutory considerations, the factors listed in § 5328(a) do not address the actual impact of relocation, which is the obvious focus of § 5337. More importantly, we observe that four of the ten relocation factors identified in § 5337(h) do not have a corresponding factor in § 5328(a). Thus, while the trial court addressed all of the best-interest factors in the context of § 5328(a), it failed to address the salient relocation dynamics concerning: 1) "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;" 2) "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;" 3) "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;" and 4) "The reasons and motivation of each party for seeking or opposing the relocation." See 23 Pa.C.S. § 5337(h)(3), (6), (7), and (8). Thus, we conclude that the trial court's sole reliance upon § 5328 factors was insufficient to satisfy its mandate under § 5337(h) to address the ten relocation factors prior to permitting Mother to relocate.

Finally, we observe that since the trial court's August 16, 2012 order awarded Mother primary physical custody of the children and granted her permission to relocate to Wheeling, we must determine whether to preserve the underlying custody award in remanding for the trial court to render a decision consistent with § 5337(h). Mindful of the trial court's belief that shared physical custody would best achieve the children's interest, its preference that the parties exercise equal periods of physical custody, and its qualification that it awarded Mother primary physical custody concomitant with its decision to grant her petition for relocation, we vacate the trial court's August 16, 2012 order in its entirety. See Trial Court Opinion and Order, 8/16/12, at 2 ("Were there to be no relocation, a custody arrangement of shared parenting would be ordered."); id. at 6 (having granted Mother primary custody, "The key question then, is whether the most desirable arrangement—the Mother continuing to live in North Huntingdon—is feasible."). Likewise, since the trial court's October 18, 2012 order was entirely dependent upon Mother's relocation to Wheeling, we also vacate that order. If, upon the proper consideration of the statutory factors, the trial court concludes that the children would be best served by Mother's primary physical custody in Wheeling, it shall enter an appropriate order and custody schedule.

Orders vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

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