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S.J.S. v. M.J.S.

Superior Court of Pennsylvania

August 7, 2013

S.J.S. Appellant
v.
M.J.S. Appellee

Appeal from the Order Entered August 24, 2012 In the Court of Common Pleas of Erie County Civil Division at No(s): 11777-2008

BEFORE: BOWES, J., LAZARUS, J., and COLVILLE, J. [*]

OPINION

LAZARUS, J.

S.J.S. (Mother) appeals from the order of the Court of Common Pleas of Erie County denying her petition for primary custody of her two minor daughters, C.S. (born March 2002), and E.S. (born November 2004), and denying her request to relocate with them from Erie, Pennsylvania, to Buckingham, in Bucks County, Pennsylvania. After our review, we affirm.

Mother and M.J.S. (Father) were married in 2002. They separated in 2008 when the girls were ages 6 and 3. Throughout the marriage, Father worked from 6:00 a.m. to 2:30 p.m. during the week, and Mother worked from 3:00 p.m. to 9:00 p.m. During that time, Father was the primary caregiver. After the parties separated, the parties agreed to a custody arrangement. Mother's work schedule changed to four days a week, and for three years after separation, Father watched the girls two days a week and Mother's stepmother watched them two days a week. Mother and Father worked out alternating weekends and holidays, and Father enjoyed open telephone communication with the children.

On May 17, 2012, Mother mailed a notice of relocation to Father.[1]Father filed a complaint for shared custody on May 16, 2012, as well as an objection to the proposed relocation notice on May 29, 2012.

In June 2012, after a hearing before a custody conciliator, Mother and Father entered into a consent order for shared legal and physical custody of their children. Mother had primary physical custody, and Father had partial physical custody every other weekend, from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and on Wednesdays from 3:00 p.m. until 8:00 p.m. Based on the parties' agreement, the Honorable John J. Trucilla issued an order dated June 13, 2012, which was entered on the docket on June 19, 2102. See Order of Court, 6/13/2012. Judge Trucilla deferred Mother's relocation request for trial.

Following trial, Judge Trucilla denied Mother's request for relocation and issued a final custody order providing that Mother would retain primary custody if she remained in Erie, but that if Mother chose to relocate, Father would be awarded primary custody and the parties by mutual agreement would arrange for Mother's partial custody periods. Mother appealed and filed a timely Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). The court issued its Pa.R.A.P. 1925(a) opinion on October 18, 2012. Mother raises fourteen issues for our review:

1. Whether the trial court erred in failing to give proper weight to the role of Mother as primary caretaker of the children, in determining that Mother should have primary custody of the children unless she relocates to Buckingham, Pennsylvania, but then failing to award Mother primary custody of the children in Buckingham, Pennsylvania?
2. Whether the trial court erred in emphasizing the stability of the children's relationships and lives in Erie, Pennsylvania as a main factor in denying Mother's request to relocate with the children, where the children will be experiencing a change in their school (1) if they live with Mother in Erie due to the fact that their prior school has closed, and (2) if they live with Father in Erie, as he is in a different school district than Mother?
3. Whether the trial court erred in disregarding the developmental needs of the children which are served primarily by Mother and the impact on the children's physical, educational and emotional development which would result from a transfer of primary custody to the Father, where the Father has no involvement with the children's schooling, school activities, friends, little to no involvement with their extracurricular activities, and no history of providing any extended care of the children over the past four years?
4. Whether the trial court erred in placing weight on the lack of "necessity" of the move to Buckingham, where the statutes and case law do not require the custodial parent to show that a move is necessary before relocation is granted?
5. Whether the trial court erred in determining that there are not adequate substitute partial custody arrangements that would preserve the relationship between Father and the children, where the children would have the opportunity to spend long weekends at least every other month, plus extended holidays and extended time in the summer with Father?
6. Whether the trial court erred in finding that factor five of 23 Pa.C.S. § 5337(h) and factor one of 23 Pa.C.S. § 5328(a) are neutral as to their application to either Mother or Father, where there is a clear pattern established that Mother acted to promote the relationship between Father and the children since the parties' separation, and where there is no allegation or evidence that Father has taken any steps to promote the relationship between Mother and the children?
7. Whether the trial court erred in emphasizing the emotional toll a relocation would have on the children if regular and consistent contact with Father is taken away and in failing to consider the emotional toll it would take on the children to be removed from the primary care of Mother and the day-to-day contact and care provided by Mother if the children are not permitted to reside primarily with her?
8. Whether the trial court erred in determining that Mother's motives for the move to Buckingham were not based upon what is in the children's best interests, where Mother testified that she wanted the children to have better financial and educational opportunities and to have the opportunity to move out of the inner city into a suburban and family-oriented setting?
9. Whether the trial court erred in determining that factor ten of 23 Pa.C.S. § 5328(a) is neutral rather than heavily in favor of Mother, where Father has failed to attend or even participate in any area of the children's lives other than to provide brief periods of supervision, and where Mother has been solely responsible for the children's daily needs, medical needs and educational needs for four years since the parties separated?
10. Whether the trial court erred in failing to analyze both custodial options on equal ground, where there was no prior custody determination made by the court?
11. Whether the trial court erred in concluding that the best interests of the children would be served by awarding Mother primary custody on the condition that Mother remain in Erie, rather than analyzing both the residence of Mother in Buckingham and of Father in Erie on equal footing in an initial custody determination?
12. Whether the trial court erred in failing to conclude that it is in the children's best interests to reside with Mother in Buckingham, Pennsylvania?
13. To the extent the relocation factors apply to this case, whether the trial court failed to give proper weight to the facts that: Mother has no opportunity for advancement in employment at her current position; Mother testified that the house selected for the first year in Buckingham was selected where there would be opportunities to purchase a residence within the children's school district; and Mother is in a four-year relationship with her paramour with significant time spent together?
14. Whether the trial court erred in failing to apply the best interests analysis under 23 Pa.C.S. § 5323(a) to each proposed residence in the initial custody determination, and apply the relocation factors as just one corner of that analysis?[2]

At trial, the court heard testimony from Mother, from C.S. (the elder daughter, age 10), and from K.R., Mother's stepmother. The court also heard testimony from Dr. Stephen Barrett, an expert in school district evaluations, and from Mother's paramour, D.M.

The distance between Erie and Buckingham is approximately IVi hours by car. Father, his family, and Mother's family reside in Erie. There is no dispute that the children are happy in Erie; they have strong and loving bonds with both parents as well as with their large extended family. Mother admitted that if relocation were granted, Father would be unable to visit frequently. Additionally, the trial court indicated its concern with Mother's motives for relocating across the state, pointing out that Mother acknowledged it was "to get away from [Father]" and to accommodate her "life partner, " D.M., and his wish to be near both Philadelphia and New York City to pursue his desire to publish a novel. See 23 Pa.C.S.A. § 5337(i)(2) ("Each party has the burden of establishing the integrity of that party's motives in either seeking the relocation or seeking to prevent the relocation.").

Mother met D.M. through an online board game two months after separating from Father. Mother and D.M. maintained a relationship for several years. The lease for the house D.M. rents in Bucks County lists him as the lessor and Mother and the children as "permanent guests." N.T. Trial, 7/25/2012, at 194. D.M. is an aspiring writer who has traveled extensively and whose income is from a family trust. As the trial court stated, he "is a privileged beneficiary of the wealth of his parents[.] . . . Quite simply, he has not grown up, nor does it appear that he is any rush to do so." Trial Court Opinion, 8/24/2012, at 9. The court expressed its reservations with respect to whether D.M. was capable or willing to "responsibly assist in the upbringing of two adolescent girls." Id.

Throughout trial, Mother explained that she wanted a "better" life for the children, proclaiming that Buckingham, Bucks County, could provide the children with a quality education and a suburban neighborhood. Mother was reluctant to acknowledge that the suburbs of Erie or Pittsburgh could afford them as much, despite the fact one of the homes D.M.'s parents own is located in Pittsburgh. D.M. testified that, although not his top choice, he would live in Erie. Id. at 205.

Mother recognized that the children were happy and doing well in Erie, academically and socially. She acknowledged that C.S. had a wide circle of friends and her class had elected her ...


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