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A.V. v. S.T.

Superior Court of Pennsylvania

March 7, 2014

A. V., Appellee
v.
S.T., Appellant

Submitted: January 27, 2014.

Appeal from the Order of the Court of Common Pleas, Luzerne County, Civil Division, No(s): 6833-2013. Before MUROSKI, J.

Matthew Loftus, Shavertown, for appellant.

Ruth S. Borland, Wilkes Barre, for appellee.

BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J. OPINION BY GANTMAN, P.J.

OPINION

Page 819

GANTMAN, P.J.:

Appellant, S.T. (" Father" ), appeals from the order entered in the Luzerne County Court of Common Pleas, which granted the petition to relocate filed by Appellee, A.V. (" Mother" ), concerning the minor children, Al.T., An.T., and K.T. (" Children" ). For the reasons that follow, we vacate and remand for further proceedings.

The relevant facts and procedural history of this appeal are as follows. Mother and Father are the unmarried parents of three minor children. In June 2013, while the parties resided at the same address in Ashley, PA, Mother filed a complaint for custody, seeking shared legal and primary physical custody of Children. On July 29, 2013, Mother filed a petition to relocate with Children from Ashley, PA to New Jersey.

By order dated July 29, 2013, and entered July 30, 2013, the trial court entered an agreed-upon award of shared legal custody of Children to Mother and Father and shared physical custody on an alternating weekly basis, with exchanges to occur every Sunday evening. The court noted the custody was by agreement of the parties.

Following entry of the custody order, Mother moved to Brick, NJ and took Children there during her weeks of custody. Subsequently, the trial court held a hearing on Mother's unresolved relocation petition. On September 4, 2013, the trial court granted Mother's petition for relocation. The relocation order included a provision entitled " Partial Custody," which gave Father partial physical custody on alternating weekends, from Friday evening until Sunday evening. The court did not initially file an opinion in support of its September 2013 order or explain the basis for its decision.

Father timely filed a notice of appeal and simultaneously filed his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Subsequently, on October 8, 2013, the trial court filed a memorandum and order, observing it had inadvertently failed to provide an opinion in support of its order. On that same date, the court permitted Father an additional thirty days to file a further statement of errors complained of on appeal. No further statement of errors complained of on appeal appears on the trial court docket or in the record.

On appeal, Father presents the following issues for our review:

1. DID THE TRIAL COURT ERR IN FAILING TO PERFORM AN ANALYSIS BASED UPON THE FACTORS ENUMERATED IN 23 PA.C.S. § 5328(A) IN ORDER TO DETERMINE IF EITHER PARTY SHOULD MAINTAIN PRIMARY CUSTODY OF THE MINOR CHILDREN PRIOR TO ANY RELOCATION ANALYSIS?

Page 820

2. DID THE TRIAL COURT ERR IN FAILING TO PROVIDE AN OPINION, EITHER WRITTEN OR ON THE RECORD, WITH RESPECT TO ITS DECISION TO GRANT [MOTHER'S] PETITION FOR RELOCATION?
3. DID THE TRIAL COURT ERR IN ITS DETERMINATION THAT [MOTHER] MET HER BURDEN OF PROVING THAT HER PROPOSED RELOCATION WOULD BE IN THE BEST INTERESTS OF THE MINOR CHILDREN?

(Father's Brief at 9).

The relevant scope and standard of review are as follows:

[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it.... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination.... Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.

R.M.G., Jr. v. F.M.G. , 2009 PA Super 244, 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting Bovard v. Baker , 2001 PA Super 126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover,

[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert , 2006 PA Super 144, 902 A.2d 533, 539 (Pa.Super. 2006).

We address Father's issues one and two together. In his first issue, Father argues the trial court failed to consider the factors provided in Section 5328 of the Custody Act, at 23 Pa.C.S.A. § § 5321-40, when entering its September 2013 order. Father observes the trial court's opinion addressed only those statutory factors related to relocation. Father contends, however, the trial court's September 2013 order modified the prior physical custody agreement in addition to granting Mother's petition for relocation. Father submits the trial court should have applied Section 5328, concerning awards of custody, in addition to Section 5337, concerning relocation.

In his second issue, Father contends the trial court's application of law is defective, because the court's opinion consists of a wholesale adoption of Mother's post-trial brief. Additionally, Father observes that the record lacks support for several factual findings contained in the trial court's opinion. As to both his first and second issues, Father concludes this Court should remand the matter to the trial court for application of ...


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