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[U] W.P. v. J.P.

Superior Court of Pennsylvania

January 16, 2014

W.P., Appellee
v.
J.P., Appellant W.P., Appellee
v.
J.P., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered July 8, 2013, Court of Common Pleas, Schuylkill County, Civil Division at No. S-1735-2011

BEFORE: DONOHUE, OTT and PLATT [*] , JJ.

MEMORANDUM

DONOHUE, J.

J.P. ("Father") appeals pro se[1] from the June 28, 2013 order entered by the Court of Common Pleas, Schuylkill County, denying his petition for emergency relief seeking enforcement of his custodial vacation period with his sons, G.P. (age 10) and T.P. (age 7) (collectively, "Children"), and the July 8, 2013 order granting the petition filed by W.P. ("Mother") to relocate with Children to Ormond Beach, Florida and denying his request for legal and primary physical custody of Children. After careful review, we affirm.

Mother and Father divorced in 2011. They initially agreed to share custody of Children, with Father living in Allentown, Pennsylvania and Mother living in Pottsville, Pennsylvania. In August 2011, Mother filed a petition for primary physical and sole legal custody of Children, which the trial court granted on August 27, 2012. The trial court awarded Father partial physical custody of Children on Wednesday evenings, every other weekend, certain holidays, and for three consecutive weeks of vacation with Children, the latter of which Mother was also entitled to receive.

On October 11, 2012, Mother filed a petition to clarify the trial court's order stating that she believed it to be in Children's best interests for each party to have three nonconsecutive weeks of vacation with Children. Father objected, stating that Mother in fact sought to modify (not clarify) the trial court's order, and that modification was not warranted. The trial court agreed with Mother, finding, in relevant part, "that three (3) weeks of consecutive vacation time with one parent is not in the best interest of the children since it would deprive the other parent of physical contact for 21 days which is not recommended given the ages and emotional states of these children[.]" Trial Court Order, 11/2/12, at 2. On November 2, 2012, the trial court entered an order changing the vacation provision to allow for three nonconsecutive weeks of vacation with each parent annually. Father appealed the decision to this Court, and a majority reversed the decision of the trial court, finding that Mother sought an untimely modification of the trial court's order pursuant to 42 Pa.C.S.A. § 5505, [2] and thus the trial court was without jurisdiction to amend its August 27, 2012 order. See W.P. v. J.P., 2087 MDA 2012, 11-12 (Pa.Super. June 5, 2013) (unpublished memorandum).

On February 8, 2013, Mother filed a petition to relocate with Children to Ormond Beach, Florida and to modify the existing custody order. Father filed notice of his objection to the relocation on February 19, 2013. On February 27, 2013, Father filed a response to Mother's petition and a counter petition for sole legal and primary physical custody of Children.

On April 10, 2013, Mother filed a petition for special relief seeking to terminate Father's periods of partial custody based on Children's disclosure to Mother and a mental health counselor that Father touched them inappropriately. According to Mother's petition, the Office of Children and Youth Services ("CYS") was investigating the allegations. On April 15, 2013, the parties stipulated to the suspension of Father's contact with Children during the pendency of the investigation. Once CYS's investigation was complete, the parties agreed that Father's rights would be reinstated pursuant to the existing custody order, subject to each party's right to file additional motions. The parties further agreed to the appointment of a guardian ad litem ("GAL") for Children.

The trial court held hearings on the parties' dueling petitions to modify the custody order and Mother's petition to relocate on April 25, May 6, and May 13, 2013. At the May 13, 2013 hearing, the GAL informed the trial court that although she had not received any formal documentation, the CYS caseworker informed her by telephone that morning that the allegations that Father inappropriately touched Children were unfounded. N.T., 5/13/13, at 26. At the conclusion of the hearing, by agreement of the parties, the trial court entered an order stating, in relevant part, that Father's contact pursuant to the August 27, 2012 custody order would not resume until the GAL confirmed with CYS that the allegations were unfounded and that it was in Children's best interests to have contact with Father, using the assistance of reunification counseling.

On June 13, 2013, the GAL filed her report and recommendation. Accounting for each of the relocation factors and based on her meetings with Children, she recommended that the trial court grant Mother's request to relocate with Children to Ormond Beach, Florida.

On June 24, 2013, Father filed a petition for contempt and for emergency relief. Both stemmed from Mother's alleged failure to comply with the August 27, 2012 custody order as it relates to Father's periods of partial custody with T.P.[3] Of relevance to this appeal, Father sought therein to exercise his three consecutive weeks of vacation with T.P. beginning on July 8, 2013. Mother filed an answer to Father's petition on June 26, 2013, asserting, in relevant part, that in light of the May 13, 2013 trial court order suspending his periods of contact with Children, the August 27, 2012 custody order had no force or effect.

A hearing was held before a custody hearing master on June 27, 2013. At that hearing, the master permitted Father to enter into evidence a letter from CYS indicating that the allegations that Father inappropriately touched Children were unfounded and a letter from the reunification counselor stating that T.P. had completed counseling with Father. At the hearing, Mother acknowledged that T.P. had been spending time with Father, but that she thought it was on a trial basis, and did not believe visitation was occurring pursuant to the August 27 custody order. On June 28, 2013, the trial court entered an order denying and dismissing the "proposed Interim Order, " and further ordering that Father's custodial periods could not begin until the reunification counselor found, and the GAL informed the trial court, that Children are emotionally ready, and the GAL "confirms" that CYS's investigation is complete. Trial Court Opinion, 6/28/13, at 1-2. The trial court ordered that Father's custodial rights remained suspended pursuant to its May 13, 2013 order. On July 5, 2013, Father filed a notice of appeal from the June 28, 2013 order, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).

On July 8, 2013, the trial court entered an order and opinion granting Mother's request to relocate with Children to Ormond Beach, Florida, and continued Mother's role as sole legal and primary physical custodian of Children. The trial court gave Father partial physical custody of Children for four weekends per year, four weeks of vacation to be taken in two-week increments, and certain holidays and portions of school breaks. Father filed a timely notice of appeal from that order on July 22, 2013, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). This Court consolidated Father's two appeals sua sponte by a per curiam Order on August 20, 2013.

1. Did the trial court commit an error of law and abuse its discretion in finding that Mother met the burden for relocation under the ten relocation factors set forth in Section 5337(h)?
2. Did the trial judge commit an error of law and abuse his discretion in personally eliciting highly-prejudicial [sic] testimony from Mother regarding ...

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