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A.M.S. v. M.R.C.

Superior Court of Pennsylvania

June 28, 2013

A.M.S. Appellee
v.
M.R.C. Appellant

Appeal from the Order Entered of August 6, 2012 In the Court of Common Pleas of Berks County Civil Division at No(s): 12-14259#1

BEFORE: BOWES, J., OLSON, J., and WECHT, J.

OPINION

WECHT, J.

This appeal requires us to identify the juncture in a custody relocation case at which a trial court must specify the reasons for its decision. We address this question under the current child custody law, which took effect in January 2011, as well as in the light shed by our recent decision in C.B. v. J.B. and M.B. and T.B., 2013 Pa.Super. 92 (April 22, 2013).

In this case, M.R.C. ["Father"] appeals from the trial court's August 6, 2012 order granting A.M.S. ["Mother"]'s request to relocate with the parties' child, B.M.C. ["Child"] from Berks County, Pennsylvania to Palmyra, New York. We vacate the order and remand for further proceedings.

Father and Mother began dating in April 2009. Mother became pregnant, and the parties moved in together. Child was born in February 2010. In May 2011, Father moved out of the parties' shared residence. Mother's extended family lives in Palmyra, New York, while Mother's sister, mother, and father live or lived in Berks County. However, Mother's sister died while Mother was pregnant with Child, and Mother's mother died three months after Child was born. Mother's parents were divorced, and Mother is not close with her father. Trial Court Opinion ["T.C.O."], 8/30/12, at 2-3.

Mother filed a petition for custody in May 2012, and then filed a notice of proposed relocation. Father filed a custody complaint and a counter-affidavit opposing relocation. On July 17, 2012, the court conducted a hearing. Prior to the hearing, the parties' lawyers represented to the court that, once the court rendered a decision on relocation, the parties would be able to agree on a custody schedule. T.C.O. at 1. At the conclusion of the hearing, the court granted Mother's relocation request and asked the parties to submit proposed custody schedules. Notes of Testimony ["N.T."], 7/17/12, at 68. After the hearing, Father fired his counsel. T.C.O. at 1.

On August 6, 2012, the court issued an order affirming its grant of permission to relocate and outlining a custody schedule. The court awarded Mother primary custody, and granted Father partial custody as follows: the first week of every month; every December 26 through January 1; and other holidays if Father travels to Palmyra. Order, 8/6/12, at ¶¶3-5.

On August 14, 2012, Father, through new counsel, appealed the court's August 6, 2012 order. Father filed his concise statement of errors complained of on appeal with his notice of appeal, as required by Pa.R.A.P. 1925(a)(2)(i).[1]

Father presents the following issues on appeal:

a. Does the trial court's Opinion in Support of Order pursuant to Rule of Appellate Procedure 1925, which is only required once a notice of appeal has been filed, fail to suffice as a reason for the award "on the record in open court or in a written opinion or order" as mandated by 23 Pa. Con. Stat. Ann. § 5323 (2012) and fail as consideration of the relocation and custody factors?[2]
b. Did the trial court err as a matter of law and abuse its discretion when it failed to consider the factors of 23 Pa. Con. Stat. Ann. § 5337(h) when entering an order permitting relocation?
c. Did the trial court err as a matter of law and abuse its discretion when it failed to consider the factors of 23 Pa. Con. Stat. Ann. § 5328 when entering an order awarding child custody?
d. Did the trial court abuse its discretion in permitting [Mother]'s relocation in light of the factors of 23 Pa. Con. Stat. Ann § 5337(h)?
e. Did the trial court abuse its discretion by awarding [Mother] primary physical custody in light of the factors of 23 Pa. Con. Stat. Ann. § 5328(a)?

Father's Brief at 7.

Father's first issue raises the question of the point in time at which a trial court is required to delineate its reasons for a custody decision. Father asks us to interpret the statute so as to determine what constitutes compliance by the trial court. In such a case, our standard of review is well-settled:

[T]he interpretation and application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law. As with all questions of law, the appellate standard of review ...

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