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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NON-PRECEDENTIAL DECISION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 unfounded allegations of sexual abuse?
3. Did the trial court commit an error of law and abuse its discretion in (1) not considering the substance of Father's counter petition for legal and primary custody of the children; (2) failing to consider the testimony and evidence presented by Father and his witnesses in support of that counter petition and otherwise in support of Father's case; and (3) at times interjecting and eliciting or preventing testimony [it]self from witnesses rather than allowing counsel to conduct their own direct and/or cross examination of witnesses, yet entering a blanket denial of Father's counter petition?
4. Did the trial court commit an error of law and abuse its discretion in failing to follow an order of the Superior Court and its own prior orders, which trial court orders included orders relating to the unfounded sexual abuse allegations against Father?
5. Did the trial court commit an error of law and abuse its discretion in failing to consider that reunification between Father and [G.P.] will not occur if Mother and the [c]hildren relocate to Florida, given Mother's failure to make a genuine effort to encourage [G.P.] to have a relationship with Father?

Father's Brief at 3-4.

We review a trial court's custody decision with the following in mind:

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), appeal denied, __Pa __, 68 A.3d 909 (2013) (citation omitted).

As his first issue on appeal, Father asserts that the trial court abused its discretion by finding that Mother satisfied her burden of proof for relocation pursuant to 23 Pa.C.S.A. § 5337(h).[4] Father goes through each factor contained in Section 5337(h) and contends that Mother wholly failed to satisfy her burden of proof.[5] Father's Brief at 16-38. He further asserts that the trial court failed to consider "all relevant evidence, and instead presents a one-sided review that is clearly biased towards Mother, " and that the trial court's opinion essentially adopts the position taken by the GAL in her report without considering the evidence presented at the relocation hearings. Id. at 15-16. Based upon the nature of Father's argument, we will examine each of the factors as found by the trial court to determine whether its findings are supported by the evidence of record.

Beginning with the first factor, the trial court found that Children's relationship with Mother was stronger than the relationship Children had with Father. Trial Court Opinion, 7/8/13, at 3. Our review of the record reveals that Children indeed have a strong relationship with Mother and her extended family in Ormond Beach, Florida. N.T., 4/25/13, at 24, 26-27, 28, 30-31; N.T., 5/13/13, at 125-26, 128-30. The GAL also observed that Children had a positive relationship with Mother, stating that Children and Mother share a strong bond and that they "look to Mother for comfort and approval." GAL Report, 6/13/13, at 3.

With respect to Children's relationship with Father, Mother testified that it "has become almost nonexistent" and "has deteriorated significantly." N.T., 4/25/13, at 51, 82. She stated that she initially got them into counseling in the hopes of "salvag[ing] some shred of a relationship with their father." Id. at 52. She testified that Children both vomited on multiple occasions before Wednesday evening visits with Father. Id. at 102- 04. Mother also stated that Children "feel misplaced and replaced" by Father's girlfriend's children, with whom they spend time when they visit with Father, and that Children are not happy about it. Id. at 54-55. G.P. has gone so far to tell Mother that if he had a gun he would kill Father and one of Father's girlfriend's children. Id. at 112. The record further reflects that both Children disclosed to Mother, and G.P. to his mental health counselor, that Father touched them inappropriately during weekend visits, which resulted in them not seeing or speaking with Father for an extended period of time. Id. at 21-22, 26-28.

Although Father presented evidence to contradict Mother's testimony regarding his relationship with Children, including testimony that he, his girlfriend, his girlfriend's children, and his extended family had a positive relationship with Children when Father was permitted to visit and communicate with Children, it is not for this Court to reweigh the evidence presented. See M.J.M., 63 A.3d at 334. As there was sufficient evidence presented to support the trial court's finding, we find no abuse of discretion in the trial court's determination with respect to the first relocation factor.

The trial court found that the second factor – the ages, stages of development, needs of Children, and the likely impact relocation would have on their physical, emotional and educational development – also favored granting Mother's petition for relocation. Trial Court Opinion, 7/8/13, at 4. At the time of the relocation hearings, G.P. had been exhibiting some behaviors that gave rise to serious mental health concerns.[6] See N.T., 4/25/13, at 97, 100-04, 112-13; N.T., 5/6/13, at 13. The trial court and the GAL attributed these behaviors to the stress of the conflict between Mother and Father and believed that removing G.P. from the situation would help him. Trial Court Opinion, 7/8/13, at 4; GAL Report, 6/13/13, at 4. Father argues that there is no support in the record for a finding that any of these behaviors are attributable to him, especially since, as Father asserts, the behaviors only began to manifest in February of 2013, when Mother began to discuss moving to Florida with Children. Father's Brief at 19. Father thus states that the record reflects it is Mother, not Father, who is the "source of [G.P's] volatile mental state[.]" Id. at 20.

Our review of the record reveals that it does not support Father's contentions. First, the record reflects that Mother first reported G.P.'s concerning behaviors prior to his December 17, 2012 mental health counseling session. See Mother's Exhibit 13, Counseling Notes, 12/17/12. G.P.'s anxiety behaviors reportedly worsened in the following months, "especially when he needs to go to his father's." Mother's Exhibit 13, Counseling Notes, 2/5/13. In a counseling session after contact with Father ceased, G.P. reported that "his OCD[7] tendencies have improved this week, " and that G.P. "felt it was easier for him because he was not seeing [Father] all week." N.T., 5/6/13, at 18 (footnote added); see also id. at 247 (Mother's testimony that G.P.'s OCD behaviors improved since he was not visiting with Father).

Furthermore, Children's maternal grandmother testified that Children are "very relaxed" when they are in Florida and that G.P. has told her that he is "very unhappy" living in Pennsylvania and "really wants to move away." N.T., 5/13/13, at 134-35. The record also reflects that Mother investigated and located an appropriate school and activities for Children. N.T., 4/25/13, at 71, 73, 78-80. Although Children are enrolled in an appropriate school (and do well there) and activities in Pennsylvania, the record reflects that Children have had to miss participating in some of their activities because they fell on a day they were to visit with Father, who would not always allow Children to participate during his periods of partial custody. N.T., 4/25/13, at 45-48, 50-51.

The record reveals sufficient evidence to support the trial court's determination as to the second relocation factor. We therefore discern no abuse of discretion.

The trial court found that the third factor, which requires the trial court to consider the feasibility of maintaining a relationship between the children and the non-relocating party through alternative custody arrangements, also weighed in favor of relocation. Trial Court Opinion, 7/8/13, at 4. There is no question that Children's move to Florida would reduce Father's periods of partial custody. In arguing that this would be detrimental to Children, Father relies heavily on testimony provided by his girlfriend and himself about how much Children enjoyed their time visiting with Father and his girlfriend's children. Father's Brief at 23-24. As noted above, however, there was also testimony that Children did not enjoy their time visiting with Father, which the trial court found credible. Also as indicated above, the trial court found credible testimony that visiting with Father was causing G.P. to exhibit concerning mental health-related behaviors. We will not reweigh the evidence in Father's favor, as it is outside of our role as an appellate court. See M.J.M., 63 A.3d at 334.

Mother testified that she travels with Children back and forth between Florida and Pennsylvania with great ease. N.T., 4/25/13, at 18-19. Her home in Ormond Beach is relatively close to the airport. Id. at 19. Flights between Allentown and Sanford are frequent and inexpensive ($49.00 oneway and $79.00 or $89.00 the other). Id. at 19-20; N.T., 5/6/13, at 57. Mother further testified that the cost of the flight would not be a financial burden to Father. N.T., 5/6/13, at 58. Father did not present any evidence to the contrary. Based upon the evidence presented and the findings of the trial court, we find no abuse of discretion in its conclusion that the third factor favors relocation.

Regarding the fourth factor, Children's preferences, the trial court found credible the GAL's representation that Children both repeatedly expressed their desire to move to Florida. Trial Court Opinion, 7/8/13, at 4-5; see GAL Report, 6/13/13, at 5-6. Father asserts that this was insufficient proof of Children's desires, as the trial court failed to consider other evidence he presented regarding his relationship with Children or the fact that Children were in Mother's care when the GAL spoke with Children. Father's Brief at 26-28. Once again, this argument addresses the weight of the evidence, not its sufficiency. Moreover, the GAL's representation that Children wish to move to Florida is supported by other evidence of record: Children have close friends in Florida (N.T., 4/25/13, at 55-56); G.P reported to his mental health counselor that he loves visiting his maternal grandmother in Florida and going to the beach (id. at 92); G.P. told his mental health counselor that he wants to move to Florida (N.T., 5/6/13, at 18); Children are relaxed and enjoy themselves when visiting Florida (N.T., 5/13/13, at 134); and G.P. is unhappy living in Pennsylvania (id. at 135). We therefore find no abuse of discretion in the trial court's finding as to the fourth factor.

Considering the fifth factor, the trial court stated the following:

The fifth factor is whether there is an established pattern of conduct by either party to promote or thwart the relationship of the children and the other party. This case is highly volatile and both parties have created and perpetrated conflict and discord. Both parties can be said to have thwarted the relationships between the children and the other party. This factor slightly favors relocation in that the new location will help shield the children from the current hostile environment.

Trial Court Opinion, 7/8/13, at 5.

Father counters the trial court's conclusion with testimony from the relocation hearings, most of which is taken out of context, which he believes shows that Mother is the only one who has attempted to thwart his relationship with Children. Father's Brief at 29-30. Our review of the record, however, comports with that of the trial court – both parties, including Father, appear to have made this exceedingly and unnecessarily difficult for Children. See, e.g., N.T., 5/6/13, at 103 (Mother reported to G.P.'s counselor that G.P. is upset because Father told him he would not be permitted to speak with Mother at G.P.'s trumpet recital if Mother came to watch). The trial court found this only slightly weighed in favor of relocation, as there would be no more day-to-day discord for Children to be in the middle. We find no abuse of discretion in this conclusion.

The trial court and Father considered factors six and seven together, as they relate to quality of life improvements that will result from the move for Mother and Children, respectively. The trial court found that "there was substantial evidence that Mother's relocation would improve [her] general quality of life, " including improvements in her work life, her finances, and the level of family support (including not having to hire a nanny), and that moving back to Florida was Mother's plan while she was married to Father. Trial Court Opinion, 7/8/13, at 5-6. It further found that the move would improve Children's lives, crediting Mother's testimony that living in Florida would "give her the best opportunity to provide the children with a 'joyful' and 'magical' childhood." Id. at 6. Father asserts that each of the trial court's factual findings are erroneous, pointing to evidence of record that he purports is conflicting or contradictory. Father's Brief at 30-34.

Father is correct that Mother testified that it was not her plan to move to Florida at the time she entered into the marital settlement agreement in 2011 or during the original custody hearing in 2012. See N.T., 5/6/13, at 76-79. However, this does not negate Mother's testimony that she and Father had planned to move to Florida during their marriage, but ended up not moving because Father did not wish to take the Florida Bar Exam. See N.T., 4/25/13, at 36-43. According to Mother's testimony, her more recent "change of heart" came as a result of the deteriorating relationship between Father and Children, as they are "joyful" and "happy" in Florida, but "suffering" while living in Pennsylvania. N.T., 5/6/13, at 67-68.

Father also contends that Mother's testimony about her improved financial situation in Florida was nothing more than speculation. Father's Brief at 32. We disagree. The record reflects that Mother testified that in her medical practice in Pottsville, she recovers from insurance companies between 52 and 56 percent of what she bills, whereas her father, who has a medical practice in Ormond Beach, recovers 98 percent of what he bills. N.T., 4/25/13, at 63. Mother stated that this is simply because reimbursement rates are higher in Florida than they are in Pennsylvania. Id. at 60. She knows this because she has compared reimbursement rates with her father and with close friends in Florida who are also doctors. Id. at 61. She has also seen her father's accounts receivable summary and compared it to her own. Id. at 63.

Mother further testified that while she has had great difficulty finding other physicians to join her medical practice in Pottsville, "there's a waiting list of doctors to join practices" in Ormond Beach, which would allow her more flexibility in her schedule and do more of what she enjoys doing, as opposed to what she must do as a sole practitioner. Id. at 64. She also testified to having a large referral base in Ormond Beach, as she knows 75 percent of the medical staff there, compared to knowing no one when she began her practice in Pottsville. Id. at 67. The trial court found Mother's testimony in this regard to be credible. See Trial Court Opinion, 7/8/13, at 5-6.

Finally, Father contends that the trial court erred in its finding of the level of family support available to Mother. Father's Brief at 32-33.

Although Father is correct that Mother testified she did not presently need a fulltime nanny, N.T., 4/25/13, at 33, she did not testify that she needed no assistance with Children. Mother testified that she must pay someone to help her in Pottsville, as she has no family there. Id. at 32. In Florida, on the other hand, Children's maternal grandmother stated she would provide Mother with the help that Mother otherwise would have to hire, eliminating that expense. N.T., 5/13/13, at 131-32. Furthermore, Mother and Children's maternal grandmother testified that Mother's father and siblings live in Ormond Beach, were going to be relocating to Ormond Beach soon, or frequently visited Ormond Beach. Id. at 128-29; N.T., 4/25/13, at 22-30.

The record supports the trial court's findings with respect to factors six and seven. Father's arguments to the contrary are without merit.

Regarding the eighth factor, the trial court found that both Mother and Father had valid reasons for wanting to relocate and opposing relocation, respectively. Trial Court Opinion, 7/8/13, at 6-7. The trial court stated that it understood that Father will have a more difficult time maintaining his relationship with Children, but believed that the benefits of the move outweighed the burden on Father, especially in light of Father's ability to travel to Florida to visit Children. Id. Based upon our review of the record as discussed supra, we find no abuse of discretion in the trial court's determination.

Factor nine involves present or past abuse by either party or a member of either party's household. The trial court found "this [factor] does not apply since the [CYS] investigation is concluded and [CYS] confirmed that the allegations were unfounded." Id. at 7. There was no further testimony regarding abuse by either party.[8] Thus, the trial court did not abuse its discretion in reaching this conclusion.

Turning to the tenth and final factor, the trial court made no findings relevant to relocation.[9] Father asserts that the trial court erred by failing to consider testimony that G.P. "is independently in contact with several of Mother's ex-boyfriends and/or new male acquaintances." Father's Brief at 38. Our review of the record reveals that G.P. does communicate with several of Mother's longtime male friends, none of whom, according to Mother, are ex-boyfriends. See N.T., 5/6/13, at 212-17. As there is no record support for Father's contention to the contrary, the trial court did not abuse its discretion by failing to consider this information in assessing Children's best interests.

As the above discussion indicates, the trial court's findings are supported by competent evidence and its conclusions are reasonable in light of the evidence of record. See M.J.M., 63 A.3d at 334. We therefore find no abuse of discretion in the trial court's decision to permit Mother to relocate to Ormond Beach, Florida with Children.

As his second issue on appeal, Father asserts that the trial court erred and abused its discretion by questioning Mother regarding the allegations of sexual abuse Children made against Father. Father's Brief at 38-39. This issue was not raised in his concise statement of errors complained of on appeal and is therefore waived. Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the concise statement of errors complained of on appeal are waived); In re G.D., 61 A.3d 1031, 1036 n.3 (Pa.Super. 2013).

We are constrained to find waiver of the remaining three issues raised by Father as well. Father fails to cite a single authority in support of any of the issues in his appellate brief. See Father's Brief at 39-47. This is a clear violation of the Pennsylvania Rules of Appellate Procedure and results in waiver of the claims raised. Pa.R.A.P. 2119(a); S.M.C. v. W.P.C., 44 A.3d 1181, 1189 (Pa.Super. 2012).

Order affirmed.

Judgment Entered.


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