Clouser, S. v. M. Clouser

J-S08044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SARAH CLOUSER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MICHAEL CLOUSER :

:

Appellant : No. 1376 MDA 2021

Appeal from the Order Entered October 6, 2021

In the Court of Common Pleas of York County

Civil Division at No(s): 2016-FC-001261-03

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: MAY 2, 2022

Michael Clouser (Father) appeals from the custody order entered in the

York County Court of Common Pleas, granting the petition of Sarah Clouser

(Mother) to relocate with the parties’ minor children, M.C. and C.C.

(collectively, the Children), from Mechanicsburg, Cumberland County,

Pennsylvania, to Emerald Isle, North Carolina. Father avers the trial court

erred in: (1) limiting his presentation of evidence; (2) improperly weighing

particular statutory custody and relocation factors; (3) improperly weighing

M.C.’s testimony while disregarding C.C.’s testimony; and (4) finding

relocation was in the Children’s best interests. We affirm.

I. Facts & Procedural History

Father and Mother, who were divorced in 2019, are the natural parents

of the Children. N.T., 9/24/21, at 34. Their son, C.C., was born in June of

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2011, and their daughter, M.C., in January of 2008. At the time of the

underlying relocation hearing, the Children were 10 and 13 years old,

respectively.

Mother initiated the instant custody action on July 13, 2016, following

the parties’ separation, by filing a complaint for shared legal custody and

primary physical custody, along with notice of proposed relocation with the

Children to Emerald Isle, North Carolina. Mother grew up in North Carolina,

M.C. was born there, and her parents continued to live there. N.T. at 50.

However, Mother soon withdrew her request to relocate. With Father’s

consent, she moved with the Children to Mechanicsburg, Cumberland County.

On August 18, 2016, the trial court issued a stipulated order,1 awarding the

parties shared legal custody, Mother primary physical custody, and Father

partial physical custody on Tuesday and Thursday evenings and alternating

weekends.

In December of 2016, Mother filed a petition to modify custody, again

seeking permission to relocate with the Children to North Carolina. Father

filed a counter-affidavit, objecting to Mother’s petition. Mother withdrew her

request, and, on March 6, 2017, the parties stipulated to an order that

awarded Mother primary physical custody during the school year, and Father

____________________________________________

1 Several orders in this record reflect one date in the text of the order, but are

entered on the trial docket one or several days thereafter. For ease of locating

these orders in the record, we cite them with their docket entry dates.

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enlarged partial physical custody. The parties also agreed the Children’s

maternal grandparents shall have custody for five weeks in the summer at

their home in North Carolina, with the parties to share physical custody on an

alternating weekly basis for the remainder of the summer.

Next, on February 28, 2018, Mother filed a petition to modify the

custody order.2 However, by stipulated order dated August 17, 2018, the trial

court maintained the same custody order, including the parties’ agreement for

the Children to spend five weeks in the summer with their maternal

grandparents in North Carolina.

Thereafter, on a date not apparent from the record, Mother remarried.

She lived in Mechanicsburg with her husband, R.S. (Stepfather), and her two

stepchildren, who are of similar age to the Children. N.T. at 53, 113. Mother

and Stepfather also share a son, who was born in approximately 2018. See

id. at 114 (son was three years old at the time of the September 2021

hearing). Mother and Stepfather thus have five children living with them. Id.

at 53.

Father remarried in 2019. N.T. at 118. He and his wife, K.C.

(Stepmother), reside in Adams County, which is 30 minutes from Mother’s

____________________________________________

2 Mother also sought a finding of contempt against Father, alleging that he,

inter alia, refused to allow telephone calls while the Children were in his care,

and failed to inform her that he had to work on certain Mondays and refused

to tell her who was watching the Children.

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home, along with his two stepchildren, who are also of similar age to the

Children. Id. at 35, 118.

Sometime in July of 2021, Mother filed the underlying petition to

relocate with the Children to North Carolina.3 Mother averred, inter alia, that

Stepfather received a job offer in North Carolina with a salary increase of

approximately $10,000 and the opportunity to advance in the company, which

was not available with his Pennsylvania employer. Father filed a counter-

affidavit, objecting to relocation. On July 29th, Mother requested an expedited

relocation hearing, noting Stepfather’s new employment in North Carolina, as

well as the Children’s school year, would begin in August.4

The trial court conducted a relocation and custody hearing on

September 24, 2021. The court first interviewed the Children in camera,

separately, in the presence of the parties’ counsel. N.T. at 4-31. As stated

above, the C.C. was 10 years old and M.C. was 13 years old at this time. Both

parties and the court referred to the expedited nature of the hearing, for

____________________________________________

3 Mother served notice of her request to relocate on Father around July 2,

2021. See Mother’s Return of Service, 7/30/21. However, the notice is

stamped with a “filed” date of July 30, 2021, and entered on the trial docket

on that same day. Meanwhile, Father’s counter-affidavit is stamped as “filed”

approximately two weeks earlier, on July 14th, with a docket entry dated that

same day.

4 See 23 Pa.C.S. § 5337(g)(1) (“[E]xcept as set forth in paragraph (3)

[pertaining to exigent circumstances,] the court shall hold an expedited full

hearing on the proposed relocation after a timely objection has been filed and

before the relocation occurs.”).

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example noting the amount of time left for the hearing. See, e.g., N.T. at 47

(Father’s counsel noting “we have less than an hour and 15 minutes,” and trial

court agreeing, stating, “Yeah, you’ve got to speed this up.”), 71, 73 (trial

court limiting both Mother’s direct and cross examination, as it had to allow

sufficient time for Father’s testimony). Mother and Father testified first, and

then Stepfather and Stepmother testified.

At the time of the hearing, the parties had informally agreed for Father

to have more custody time than set forth in the March 2017 and August 2018

stipulated orders. N.T. at 36, 84. Whereas the 2018 order awarded Father

custody on alternating weekends from Thursday after school to Monday

morning, the parties extended custody through Tuesday morning, as well as

alternating Monday overnights.

The parties stipulated they currently lived approximately 30 minutes

from each other. N.T. at 35. Meanwhile, Mechanicsburg and Emerald Isle,

North Carolina are 457 miles apart, and the driving time is approximately eight

to nine hours. Id. at 36. The trial court had indicated its belief that the

Children’s schools in Mechanicsburg and the North Carolina schools were

comparatively equal. See id. at 49.

Mother testified to the following. Stepfather was a project manager in

the construction industry. N.T. at 51-52. He accepted an employment offer

in North Carolina as a project engineer, which would present a salary increase

of approximately $50,000 over six months, as well as more opportunities for

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advancement than his current position. Id. at 51-53. This salary increase

could allow Mother to work fewer hours. Id. at 49. Furthermore, whereas

Stepfather currently commutes 1 hour and 20 minutes each way to his current

job in Maryland, his commute in North Carolina would be 25 to 30 minutes.

Id. at 53. Mother works as a dental hygienist, has applied for a dental

hygienist license in North Carolina, and has contacted potential employers

there. Id. at 52, 54-55.

Mother also testified her parents, in North Carolina, are retired and could

help with supporting the family. N.T. at 53-54. According to Mother, the cost

of living was lower in North Carolina, and Mother could “get the same size

house that [she and Stepfather] own now,” for “$400 less a month in

mortgage.” Id. at 55. Additionally, a public college in North Carolina would

cost $5,000 to $6,000 less per year than a Pennsylvania public college. Id.

at 58.

Mother explained why she desired to move to North Carolina with the

children:

The kids love it there. My husband got offered a position making

more money which would allow me to work less so that I can

volunteer more in the kids’ classrooms. The kids love going fishing

with my dad and golfing. They’ve made friends there through

their summer camp that they’ve maintained contact with

throughout the year.

Id. at 49. Mother stated that during the school year, she would transport the

Children to Pennsylvania for long weekends, working with Father’s schedule.

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Id. at 39-40. Mother also agreed to Father having six to eight weeks’ custody

during the summer. Id. at 40.

Father testified to the following. During the school year, the Children

sometimes spend Monday evenings overnight with their paternal grandmother

and step-grandfather. Id. at 86. The Children also regularly visit with their

paternal grandfather. Id. Father and the Children spend many weekends

visiting Stepmother’s parents and the Children’s step-cousins. Id. at 85-86.

Father did not believe the Children “fully understand the impact of . . .

relocation,” as they may not understand that “all of the little things [they] do

together” will become “hard to do anymore.” N.T. at 93-94. Father believed

relocation would hurt the Children’s emotional development. Id. at 99. He

testified the parties’ son, C.C., “has always had an issue with confidence. And

we’ve done a really good job of working on him with that [and] he has gotten

a lot better, but he still has those tendencies[,] and if I’m not around[,] I won’t

be able to help him through it.” Id. With respect to their daughter, M.C.,

Father testified she has had “a complete change in her demeanor.” N.T. at

100. He explained, “She’s very distant, she can be short with everyone in the

house, especially the kids, and just wants to seclude herself.” Id. Father and

Mother both testified M.C. was receiving therapy. Id. at 72, 92. Father

expressed concern he would not be able to support M.C.: “[S]he is dealing

with [things] that she’s not open about, and I don’t believe that having her

moving away where I will not be a part of her life will help.” Id. at 100.

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Father was also concerned that “after a couple trips back and forth” to

North Carolina, the Children will “get tired of that drive and [not] want to

make it anymore.” N.T. at 94. He also calculated the Children would miss

two days of school for each trip to Pennsylvania, and while “some days are

remote learning,” the Children would “be in the car, which is not a good

environment [for] schoolwork.” Id. at 94-95. The Children would also “be

travelling late at night . . . and on nights before school nights,” which could

prevent “proper rest before school.” Id. at 95. On cross examination, Mother

agreed that each visit would involve at least 15 hours of riding in the car. Id.

at 74.

M.C., age 13, testified in camera to the following. She stated she did

not get along with Father about 75% of the time, and when asked why by the

trial court, she responded, “Just as we grew older[,] we kind of grew apart I

guess.” N.T. at 11. With respect to the proposed relocation, M.C. stated:

At first when [Mother] told us . . . I was kind of skeptical. I

thought, well, there [are] a lot of people [in Pennsylvania] that I

want to stay with, but as the year went on, I just kind of lost those

people[. And] when I went to North Carolina . . . I felt . . . I could

really connect with people there more, and I felt like that was

more of a home [than] Pennsylvania[.] So I then decided that I

would rather go to North Carolina than stay in Pennsylvania.

Id. at 15. M.C. explained that she attends a week of camp in North Carolina

each summer, she “connected with a lot of people[, and t]hey’re part of the

reason why [she] wanted to go.” Id. at 20. M.C. maintains contact with these

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friends and feels they are better friends than her friends in Pennsylvania. Id.

at 20-21.

C.C., age 10, testified in camera regarding his preference on relocation:

[C.C.:] I don’t really want to move.

[Trial Court:] You really don’t want to move. Your sister told

me that you would say that.

A. Because my friends are here, my family is here[.] I don’t

really have any family in North Carolina other than grandpa.

Q. Well, you have a grandma and grandpa in North Carolina,

don’t you?

A. Yeah, but then I have a grandma and grandpa here. Four

other ones — or six other ones here too, and a lot of family too.

N.T. at 29. When asked by the trial court whether he would, if he moved to

North Carolina, want to spend more than half his summer with Father, even if

M.C. did not spend the same amount of time, C.C. replied he would want to.

Id.

As stated above, Stepfather and Stepmother also testified. Following

the testimonial evidence, the trial court granted Mother’s request to relocate

with the Children and modified the existing custody order, effective upon

relocation. The court reviewed, on the record, the statutory factors for

relocation and custody5 (discussed infra). N.T. at 129-38. Generally, the

court adopted Mother’s proposal for Father to have custody one weekend,

____________________________________________

5 See 23 Pa.C.S. §§ 5328(a), 5337(h) (discussed infra).

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Friday through Sunday, each month. See Mother’s Exh. M17. The court also

granted Mother five weeks of custody in the summer, with Father having the

remaining weeks. N.T. at 126. Mother was to provide all transportation for

the visits to Father. Id. at 127. The court also “encourage[d] the parties to

perhaps give [F]ather some more time in the summer with his son . . . who

clearly expressed a preference to spend most of the summer with his father.”

Id. at 128.

The trial court entered its custody order on the docket on October 6,

2021. Father filed a motion for reconsideration, which the court denied on

October 28th. Father timely filed a notice of appeal, along with a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i). The court has also issued a Rule 1925(a) opinion.

II. Statement of Questions Involved

On appeal, Father presents five issues for review, which we have re-

ordered for ease of disposition:

A. Whether the Trial Court committed an abuse of discretion or

an error of law in precluding Father from introducing evidence,

including testimony of witnesses, and limiting Father’s ability to

cross-examine Mother’s witnesses?

B. Whether the Trial Court committed an abuse of discretion or

an error of law in considering, and heavily weighing, the increase

in salary of Mother’s husband and disregarding the evidence that

the only family near the proposed relocation are Mother’s parents

with whom the [C]hildren already spend a significant period of

time?

C. Whether the Trial Court committed an abuse of discretion or

an error of law in failing to consider that the relocation will deprive

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the [C]hildren of having Father participate in school or

extracurricular activities?

D. Whether the Trial Court committed an abuse of discretion or

an error of law in considering the testimony of the parties’

daughter while completely disregarding the testimony of the

parties’ son?

E. Whether the Trial Court committed an abuse of discretion or

an error of law in granting Mother the ability to relocate with the

[C]hildren to North Carolina where, as here, the evidence did not

establish that the relocation was in the [C]hildren’s best interest

or permanent welfare or otherwise justified by the relocation

factors set forth in Section 5337(h) of the Pennsylvania Child

Custody Act[?]

Father’s Brief at 5.

III. Standard of Review

We note the scope and standard of review of a custody and relocation

order:

[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.

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.

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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.

The test is whether the evidence of record supports the trial

court’s conclusions.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted).

“It is not this Court’s function to determine whether the trial court

reached the ‘right’ decision; rather, we must consider whether, ‘based on the

evidence presented, [giving] due deference to the trial court’s weight and

credibility determinations,’ the trial court erred or abused its discretion. . . .”

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005). “[T]he knowledge gained

by a trial court in observing witnesses in a custody proceeding cannot

adequately be imparted to an appellate court by a printed record.” Ketterer

v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006).

IV. Statutory Factors for Custody & Relocation

In custody cases, the paramount concern is the best interests of the

child. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation

omitted). “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s physical,

intellectual, moral, and spiritual wellbeing.” Id. (citation omitted).

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Section 5328(a) of the Child Custody Act sets forth factors to be

considered by a trial court before fashioning a custody order:

(a) Factors.—In ordering any form of custody, the court

shall determine the best interest of the child by considering all

relevant factors, giving weighted consideration to those factors

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit

frequent and continuing contact between the child and

another party.

(2) The present and past abuse committed by a party or

member of the party’s household, whether there is a

continued risk of harm to the child or an abused party and

which party can better provide adequate physical safeguards

and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1)

and (2) (relating to consideration of child abuse and

involvement with protective services).

(3) The parental duties performed by each party on

behalf of the child.

(4) The need for stability and continuity in the child’s

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on

the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the

other parent, except in cases of domestic violence where

reasonable safety measures are necessary to protect the child

from harm.

(9) Which party is more likely to maintain a loving,

stable, consistent and nurturing relationship with the child

adequate for the child's emotional needs.

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(10) Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special

needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or

ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the

willingness and ability of the parties to cooperate with one

another. A party’s effort to protect a child from abuse by

another party is not evidence of unwillingness or inability to

cooperate with that party.

(14) The history of drug or alcohol abuse of a party or

member of a party’s household.

(15) The mental and physical condition of a party or

member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a)(1)-(16).

Furthermore, Section 5337(h), sets forth 10 factors that a trial court

must consider when considering a petition for relocation:

(h) Relocation factors.—In determining whether to grant a

proposed relocation, the court shall consider the following factors,

giving weighted consideration to those factors which affect the

safety of the child:

(1) The nature, quality, extent of involvement and

duration of the child’s relationship with the party proposing to

relocate and with the nonrelocating party, siblings and other

significant persons in the child’s life.

(2) The age, developmental stage, needs of the child and

the likely impact the relocation will have on the child’s

physical, educational and emotional development, taking into

consideration any special needs of the child.

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(3) The feasibility of preserving the relationship between

the nonrelocating party and the child through suitable

custody arrangements, considering the logistics and financial

circumstances of the parties.

(4) The child’s preference, taking into consideration the

age and maturity of the child.

(5) Whether there is an established pattern of conduct of

either party to promote or thwart the relationship of the child

and the other party.

(6) Whether the relocation will enhance the general

quality of life for the party seeking the relocation, including,

but not limited to, financial or emotional benefit or

educational opportunity.

(7) Whether the relocation will enhance the general

quality of life for the child, including, but not limited to,

financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking

or opposing the relocation.

(9) The present and past abuse committed by a party or

member of the party’s household and whether there is a

continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the

child.

23 Pa.C.S. § 5337(h)(1)-(10).

“The party proposing the relocation has the burden of establishing that

the relocation will serve the best interest of the child as shown under the

factors set forth in subsection [5337(h).]” 23 Pa.C.S. § 5337(i)(1). When

rendering a decision on relocation that also involves a custody decision, the

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trial court must consider all 10 statutory relocation factors and all 16 custody

factors. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013).

V. Trial Court’s Assessment of Statutory Factors

Although Father presents specific challenges to only some of the

statutory factors on appeal, we must review them against the trial court’s full

assessment of all 17 custody factors and 10 relocation factors. As stated

above, the court made its findings of facts on the record at the September 24,

2021, relocation hearing. See N.T. at 129-38.

With respect to relocation, the trial court found that Section 5337(h)(1)

through (7) favored relocation. It made the following findings. Under the

Subsection (1) factor — nature, quality, extent of involvement and duration

of the Children’s relationships with their parents, siblings and other significant

persons — Mother has been the majority caretaker “for quite some time.” N.T.

at 129. The court was pleased that “Father has . . . stepped up his game and

spent more time with [the C]hildren over the last” two years, “but that has

been with the full cooperation of [M]other, who has gone out of her way to

make sure [F]ather . . . gets additional times.” Id. With respect to the

Subsection (2) factor — the Children’s age, developmental stage, and needs

and the likely impact relocation will have on their child’s physical, educational

and emotional development — M.C. was “very much in favor of the relocation”

but C.C. was “really not in favor[.]” Id. at 130. Nevertheless, both “[C]hildren

have moved in the past fairly frequently have been resilient to those

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changes[,]” and M.C. “has started to look at colleges in the North Carolina

area and seems to have quite a connection with [that] area.” Id. Thus, on

balance, “the benefit of the older child overcomes the detriment to the

younger child[.]” Id.

With regard to the subsection (3) factor — the feasibility of preserving

the relationship between the nonrelocating party and the Children through

suitable custody arrangements — the trial court found its custody order

granted “a substantial amount of time” for the Children to be with Father, and

“found it admirable that [M]other is willing to provide all the transportation.”

N.T. at 130-31. The subsection (4) factor is the Children’s preferences, which

the trial court had addressed above. See id.

Next, the trial court found the subsection (5) factor — whether there

was an established pattern of conduct of either party to promote or thwart the

relationship of the Children and the other party — “weighed heavily in favor

of relocation,” as Mother has “tried [to] promote a good relationship between

the [C]hildren and [F]ather.” N.T. at 131-32. The court also found that under

subsection (6) — whether the relocation will enhance the general quality of

life for the relocating party, including a financial or emotional benefit — also

weighed “heavily in favor of relocation.” Id. at 132. Mother and her family

will benefit financially, the maternal grandparents “are retired [and] nearby

to help with the [C]hildren and other things,” and “Mother will be able to work

less and spend more time with the [C]hildren and their activities[.]” Id.

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Finally, the trial court found the subsection (7) factor — whether

relocation will enhance the general quality of life for the Children, including

any financial or emotional benefit or educational opportunity — was “a little

more difficult . . . to analyze.” N.T. at 132. While “the [C]hildren will have

some enhancement to their qualify of life, . . . they will not be able to spend

quite as much time with [F]ather and will have these trips back and forth.”

Id. Nevertheless, the court considered the availability of FaceTime and Zoom,

and that “children are spending virtual time with parents more and more.”

Id. at 132-33. The court thus concluded relocation would not make the

Children’s quality of life worse, but “will be at least the same, if not better.”

Id. at 133. The court found the remaining factors were either neutral or not

applicable. Id. at 133-34.

With respect to the custody factors, the court weighed Section

5328(a)(1), (3), (7), (9) and (10) in Mother’s favor. N.T. at 134-36. The

court heavily weighed subsection 5328(a)(1) — which party is more likely to

encourage contact between the Children and another party. The court

considered that “[M]other has for at least the last three years made it so that

[F]ather’s partial custody rights are now . . . about 60/40. [T]he court trusts

that [M]other will do likewise and try to make sure that [F]ather and these

children have as much contact and relationship as possible[.]” Id. at 134.

Further, the court heavily weighed Section 5328(a)(3), the parental duties

performed by each party, and (10), which party is more likely to attend to the

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Children’s daily physical, emotional, developmental, educational and special

needs. The court found, “[M]other has not only been the majority custodial

parent in terms of time, but also . . . making sure the [C]hildren get to their

games and practices and attending them and cheering them on.” Id. at 135.

The court also found subsections (7) and (9) — the Children’s well-reasoned

preferences, and which party is more likely to maintain a loving, stable,

consistent and nurturing relationship with the Children adequate for their

emotional needs — weighed in Mother’s favor.

However, the trial court weighed factor (4) — the need for stability and

continuity in the Children’s education, family life and community life — in

Father’s favor. N.T. at 135. The court found the remaining factors were either

neutral or not applicable.

VI. Evidentiary Claims

In Father’s first issue, he asserts the trial court abused its discretion in

precluding him from presenting evidence and calling additional witnesses, and

in limiting his cross examination of Mother. Father’s Brief at 19-20. He avers

the court commenced the relocation hearing at 1:30 p.m. and made it “clear

that it would conclude the hearing that day.” Id. at 19. Aside from

Stepmother and Stepfather, the court “prohibited any additional witnesses.”

Id. at 20. Father concludes he was denied a full hearing on the important

issue of whether the Children should be permitted to relocate more than 450

miles away. Id. We conclude this issue is waived.

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It is well-settled that issues not raised in the trial court are waived and

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). This Court

has explained:

On appeal, we will not consider assignments of error that were not

brought to the tribunal’s attention at a time at which the error

could have been corrected or the alleged prejudice could have

been mitigated. “[O]ne must object to errors, improprieties or

irregularities at the earliest possible stage of the adjudicatory

process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to

complain of the matter.

State Farm Mutual v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc)

(citations omitted).

Upon review of the relocation hearing transcript, we observe Father did

not request testimony of additional witnesses. He also did not object to the

court’s limitation of his cross examination of Mother. See N.T. at 73 (trial

court advising Father’s attorney just before cross examination of Mother,

“[Y]ou’ve got about five minutes so make the best of it.”). Accordingly, any

challenges related thereto are waived for our review. See Pa.R.A.P. 302(a);

State Farm Mutual v. Dill, 108 A.3d at 885.

Furthermore, Father does not identify which witnesses he would have

called, what they would have testified to, nor what additional evidence he

would have presented. Without any explanation, Father’s issues are also

waived for failure to develop an argument. See Pa.R.A.P. 2119(a) (argument

shall include such discussion as is deemed pertinent); Harris v. Toys "R" Us-

Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (“failure to develop an

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argument with citation to, and analysis of, relevant authority waives that issue

on review”).

VII. Challenges to Specific Statutory Factors

We address Father’s second and third issues together. First, he asserts

the trial court abused its discretion in: (1) considering, as well as heavily

weighing, the increase in Stepfather’s salary; while (2) disregarding that the

only family in North Carolina were the Children’s maternal grandparents.

Father’s Brief at 23. Father maintains the “the only evidence” presented by

Mother in support of relocation were her desire to reside in North Carolina, an

increased financial benefit in the form of Stepfather’s new job, and increased

time with the maternal grandparents. Id. However, Father claims, “[t]hese

alleged benefits are simply insufficient to warrant a relocation.” Id.

Father’s third claim on appeal is that the trial court abused its discretion

in failing to consider his limited ability to participate in the Children’s school

and extracurricular activities following relocation. Father’s Brief at 25. Father

reasons he would have to use vacation days to travel to North Carolina, where

he would prefer to use his vacation days to spend time with the Children in

Pennsylvania.6 Father also challenges the trial court’s finding that he has, in

the past, had to miss the Children’s activities due to work. Id. at 25-26.

____________________________________________

6 This issue was preserved for appeal, as Father testified to having to use

vacation days to travel to North Carolina. See N.T. at 90.

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Father maintains there was no prior hearing in this case, and the court’s

finding is not supported by the evidence. Id. at 26. No relief is due.

First, pursuant to Section 5337(h)(6), the trial court was required to

consider whether relocation will enhance Mother’s general quality of life. See

23 Pa.C.S. § 5337(h)(6). Thus, the court properly considered Stepfather’s

increased salary, as well as Mother’s consequent ability to work less and spend

more time with the Children, and the availability of her parents to assist with

the Children. See N.T. at 132. In addition, to the extent Father challenges

the weight given to Stepfather’s increase in salary, we defer to the findings of

the trial court. See A.V., 87 A.3d at 820.

Next, with respect to Father’s limited ability to participate in the

Children’s activities in North Carolina, the trial court reasoned:

The Court did take the impact that relocation would have on

Father’s ability to participate into consideration, as well as . . . his

testimony about regretting having to miss parent-teacher

conferences and various sporting activities due to his work. See

[N.T.] at 87-90. The Court also noted Father’s ability to attend

events in its analysis of [Section 5328(a)(3):]

Factor number 3, the parental duties performed by each

parent.

While [F]ather has performed more duties as the years

have gone on, he candidly admits that sometimes work

gets in his way of going to practices and games and so

forth. Clearly [M]other has not only been the majority

custodial parent in terms of time, but also intention [sic]

and making sure the [C]hildren get to their games and

practices[,]attending them and cheering them on. That

is one reason why the Court has kept [M]other in

majority physical custody.

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While the Court admires [F]ather has done his best, and

it may be unavoidable on [F]ather’s part, but he has had

to make concessions to the parental duties for his job,

which is unfortunate, but nevertheless that is a factor

heavily in favor of [M]other.

Trial Ct. Op., 11/11/17, at 16-17 (paragraph breaks added), quoting N.T. at

134-35.

Father’s assertion, that there was no evidence to support a claim that

Mother retained primary physical custody due to his inability to participate in

school or other activities, is belied by the record. Father testified to missing

past activities. He acknowledged he was not able to attend every parent-

teacher conference, but explained Mother has relayed any pertinent

information. N.T. at 87. Father also testified that in the prior year, he missed

“a lot” of M.C.’s volleyball games due to his work. Id. at 88. However, he

watched the games on his work computer and texted with Mother to ask how

M.C. was playing. Id. at 88-89. Father also acknowledged he missed C.C.’s

Saturday football games, when he does not have custody, due to work. Id.

at 89. However, when he is available, he makes “every effort to be there.”

Id. The trial court considered this testimony in reaching its conclusions. See

N.T. at 135.

While Father’s arguments do not address the remaining statutory

custody and relocation factors, we review his claims against the trial court’s

assessment of all the factors. See A.V., 87 A.3d at 820 (parties cannot dictate

the amount of weight the trial court places on evidence, and we find no abuse

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of discretion if the trial court’s consideration of the Children’s best interests

was careful and thorough). The trial court properly considered these factors,

and was within its discretion in weighing them, against the other statutory

factors governing both relocation and custody. See A.M.S., 70 A.3d at 836

(trial court must consider all 10 statutory relocation factors and all 16 custody

factors when making a decision on relocation that also involves a custody

decision). Accordingly, no relief is due.

VIII. The Children’s Testimony

In his fourth issue, Father asserts the trial court abused its discretion in

considering M.C.’s testimony, while disregarding C.C.’s testimony. Father’s

Brief at 20. Father also claims the court “failed to consider improper influence

by Mother,” where Mother “admitted . . . during cross-examination . . . that

[M.C.] has had a history of pitting the parents[ ] against each other,” Mother

has instructed M.C. “to delete messages,” and Mother told M.C., “[I]f you want

any chance of us moving[,] you have to go to court in one week. This is not

the time to rock the boat.” Id. at 20-21. We conclude no relief is due.

Sections 5337(h)(4) and 5328(a)(7) both require a trial court to

consider a child’s preference, considering the age and maturity of the child.

23 Pa.C.S. §§ 5328(a)(7), 5337(h)(4). Father does not address M.C.’s stated

reasons for wanting to relocate; she testified she has a connection with her

friends in North Carolina, who are better friends than her friends in

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Pennsylvania. See N.T. at 20-21. She also stated North Carolina felt “more

of a home than Pennsylvania.” Id. at 15.

While noting that it was not bound completely by the Children’s

preference, the court considered that M.C. was “very much in favor of”

relocation, while C.C. was “really not in favor.” N.T. at 130. The court did

not, as Father claims, disregard C.C.’s testimony, but instead weighed it less

than M.C.’s testimony because she was older and more mature. Id.; Trial Ct.

Op. at 15. The court reasoned:

These children have moved in the past fairly frequently and

have been resilient to those changes. The [c]ourt notes that the

child wanting to relocate is the older of the two . . . and in fact

has started to look at colleges in the North Carolina area and

seems to have quite a connection with the North Carolina area[.

T]herefore, the benefit to the older child overcomes the detriment

to the younger child. [T]he court finds [the factor of the Children’s

preferences] in favor of relocation.

N.T. at 130. The court properly exercised its discretion in weighing the

Children’s testimony. See A.V., 87 A.3d at 820 (parties cannot dictate the

amount of weight the trial court places on evidence). On appeal, we do not

disturb these findings. See King, 889 A.2d at 632 (this Court gives due

deference to trial court’s weight and credibility determinations).

With respect to Father’s allegation of Mother’s improper influence over

M.C., we note this claim was not included in his Rule 1925(a)(2)(i) concise

statement of errors complained of on appeal. Accordingly, it is waived. See

Pa.R.A.P. 1925(b)(4)(vii).

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In any event, we note that when asked by the trial court whether she

talked to Mother or Father about relocation, M.C. replied she did not. See

N.T. at 19. She stated, “[Mother] kind of just let me say what I want to say.

She didn’t really coach me or anything and I didn’t talk to my dad about this

because we’re on different sides.” Id. The trial court did not find Mother

improperly influenced M.C.’s preference, and we would discern no abuse of

discretion.

IX. The Children’s Best Interests

In his final issue, Father asserts the trial court abused its discretion,

where the evidence did not establish that relocation is in the Children’s best

interests. Father incorporates the arguments presented in the foregoing

issues. He further alleges the court considered Mother’s personal happiness

to the exclusion of the other relocation factors, especially his inability to

exercise meaningful periods of custody. Father’s Brief at 19. We decline to

disturb the trial court’s findings.

As stated above, the paramount concern in a custody matter is the

child’s best interests. See A.V., 87 A.3d at 820. “The best-interests standard,

decided on a case-by-case basis, considers all factors that legitimately have

an effect upon the child’s physical, intellectual, moral, and spiritual wellbeing.”

Saintz, 902 A.2d at 512. We have reviewed above the trial court’s

assessment of all the statutory custody and relocation factors.

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Section 5337(h)(3) requires a trial court to consider “the feasibility of

preserving the relationship between the nonrelocating party and the child

through suitable custody arrangements, considering the logistics and financial

circumstances of the parties.” 23 Pa.C.S. § 5337(h)(3). In assessing this

factor, the trial court reasoned:

It’s always a difficult factor[ ] in these relocation trials. The

Court has put together an order that will have a substantial

amount of time of these children spending with their father [sic],

and it is hoped as put forth in the order that the parties will try to

arrange a way for [C.C.] to spend even more time with the

nonrelocating party, the father. The Court found it admirable that

[M]other is willing to provide all the transportation. Therefore,

the Court has tried to make a custody arrangement with as little

disadvantage to [F]ather’s relationship with the [C]hildren as

possible.

N.T. at 131.

Here, Father’s existing custody schedule was modified to less, but more

extended contact with the Children due to the geographical distance. Because

Section 5337(h)(3) is one of 10 factors that the court had to weigh in

assessing the Children’s best interest, the necessity of altering Father’s partial

physical custody schedule does not, on its own, defeat the order granting

Mother’s proposed relocation.

The trial court emphasized at the conclusion of the hearing,

Mom, you’ve obviously been pretty generous to [D]ad in the past

about giving him extra time. When you get 8 hours away from

him, I expect you to continue that and quite frankly if you don’t,

I hope he brings something into court because I might change it

back, to be very blunt. . . .

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N.T. at 138. See also Jordan v. Jackson, 876 A.2d 443, 452 (Pa. Super.

2005).

Based on our review of the record, the parties’ briefs, and the trial

court’s assessment of all the statutory factors, we conclude the court’s

consideration of the Children’s best interests was careful and thorough. See

A.V., 87 A.3d at 820. The court properly considered how relocation and a

modification of the existing custody order would affect the Children’s physical,

intellectual, moral, and spiritual wellbeing. See Saintz, 902 A.2d at 512. In

deferring to the trial court’s weight and credibility determinations, and in light

of the record evidence, we discern no abuse of discretion or reversible error.

Accordingly, we affirm the order granting Mother’s petition to relocate

and modifying the custody order.

X. Conclusion

In conclusion, we affirm the order granting Mother’s petition for

relocation and modifying the parties’ custody order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/02/2022

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