D.K. v. S.P.K.

• Decision Date: 02 October 2014
• Docket Number: No. 279 WDA 2014,279 WDA 2014
• Citation: 2014 PA Super 218,102 A.3d 467
• Court: Pennsylvania Superior Court
• Parties: D.K., Appellee v. S.P.K., Appellant.

102 A.3d 467

2014 PA Super 218

D.K., Appellee

v.S.P.K., Appellant.

No. 279 WDA 2014

Superior Court of Pennsylvania.

Argued Aug. 13, 2014.

Filed Oct. 2, 2014.

Daniel H. Glasser, Pittsburgh, for appellant.

Elisabeth K. Pride, Pittsburgh, for appellee.

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

Opinion

OPINION BY DONOHUE, J.:

S.P.K. (“Father”) appeals from the order entered on January 16, 2014 by the Court of Common Pleas of Allegheny County, Family Division, granting D.K. (“Mother”) primary physical custody of the parties' three children, J.K., S.K., and C.K. (collectively “the children”)—ages nine, seven, and five respectively. After careful review of the record and applicable statutory and case law, we affirm. In doing so, we conclude, inter alia, that in a case such as this, which involves a custody determination where neither Mother nor Father is relocating and only the children stand to move to a significantly distant location, the relocation provisions of the Child Custody Act, 23 Pa.C.S.A. § 5337, are not per se triggered and the notice requirement of section 5337(c) does not apply. However, in such cases, the trial court shall consider the relevant factors set forth in section 5337(h) insofar as they impact the final determination of the best interests of the children.

The relevant facts and procedural history in this case are as follows. Mother and Father married on October 19, 2002 and are the biological parents of the children. Following their marriage, Mother and Father established a residence in Leesburg, Virginia. Around 2008, Mother began to abuse alcohol. In December 2008, Mother went to the hospital where she discovered that she was pregnant with Mother and Father's third child, C.K., and that she had a high blood alcohol level in her body. Though Mother did not drink during her pregnancy with C.K., shortly after giving birth, Mother began drinking again regularly.

In 2009, as Mother's drinking problem continued to escalate, Father lost his job. Though Father was unemployed at this time, Mother claims that Father was rarely home. In March 2010, Mother entered rehab, which she was unable to complete. Mother claims that she was unable to complete rehab because her insurance only covered half of her stay and because Father and the kids needed her at home. Father claims that Mother simply quit. Mother checked into rehab again in July 2010.

In August 2010, Mother passed out at the parties' marital home from drinking too much alcohol and hit her head on a piece of furniture. The injury created a large amount of blood and paramedics transported Mother to the hospital because of the injury. Both J.K. and S.K. report that this incident is one of their earliest memories.

In late September 2010, Mother reentered rehab and around the same time, Father took the children to his parents' home in Pittsburgh. Mother was under the impression that Father's and the children's stay in Pittsburgh was going to be temporary; however, Father stated that he had to make the move permanent because he needed help caring for the children and Mother was unable to do so. After moving to Pittsburgh, Father struggled to find employment, but testified that he was working fulltime by February 2011.

For the next several months, Mother continued to struggle with her alcoholism. In January 2011, Mother and Father signed an agreement that gave full primary and legal custody of the children to Father and granted Mother limited supervised custody. Mother claims that she signed the agreement because Father would not let her see the children. Father, on the other hand, claims that Mother made little to no effort to see the children from September 2010 to January 2011 and that even after she signed the agreement, she infrequently exercised her custodial rights. In September 2011, Mother moved in with her parents in North Carolina. Mother reports that she has been completely sober since November 16, 2011.

On January 24, 2012, Mother filed a complaint for custody in which she sought primary custody of the children. On March 19, 2012, the parties entered into a consent order by which Mother received supervised (by her parents) custody of the children every other weekend and at certain times during the summer. Since January 2012, Mother claims that she has never missed a scheduled period of custody. Throughout this time, Father has made it difficult, in a variety of ways, for Mother to exercise her custodial rights with the children.

Since Mother filed her complaint for custody, the following also transpired. In September 2012, police arrested Father for driving under the influence (“DUI”) after discovering him urinating on the side of the highway. In December 2012, Father became engaged to F.S., who he had been dating since July 2011.

The trial court held a trial to determine the custody of the children on August 1 and 13, 2013 and October 3 and 30, 2013. Additionally, the trial court held in camera interviews with the parties' two oldest children, J.K. and S.K., on October 28, 2013. On January 16, 2014, the trial court awarded primary physical custody of the children to Mother. On February 18, 2014, Father filed a timely notice of appeal.¹ Father filed contemporaneously with his notice of appeal his concise statement of matters complained of on appeal pursuant to Rule 1925(a)(2) and (b) of the Pennsylvania Rules of Appellate Procedure. On appeal, Father raises the following issues for our review:

1. THE TRIAL COURT ERRED BY FAILING TO DISMISS [MOTHER]'S CLAIM FOR PRIMARY PHYSICAL CUSTODY, AND IGNORING THE STATUTORY REQUIREMENTS REGARDING RELOCATION (INCLUDING MOTHER'S FAILURE TO FILE A TIMELY AFFIDAVIT), AND BY, OVER FATHER'S COUNSEL'S CONTINUAL OBJECTIONS, PERMITTING MOTHER TO KEEP REOPENING HER CASE EVEN AFTER THE COURT OBSERVED, ON THE RECORD, THAT MOTHER HAD NOT MET HER BURDEN TO SHOW RELOCATION WAS IN THE CHILDREN'S BEST INTEREST.

2. THE TRIAL COURT ERRED IN DETERMINING THAT MOTHER MET HER BURDEN TO RELOCATE [THREE] YOUNG CHILDREN 500 MILES AWAY BECAUSE THE CHILDREN WILL HAVE BEEN IN ALLEGHENY COUNTY FOR [FOUR] YEARS BY THE TIME OF THEIR MOVE, BEEN IN NEARLY THE SOLE CARE OF FATHER, HAD FAMILY AND EXTENDED FAMILY HERE, WERE DOING WELL IN AND WERE ENTRENCHED IN SCHOOL, CHURCH AND COMMUNITY HERE, AND HAD ACTIVITIES AND FRIENDS HERE.

3. THE TRIAL COURT ERRED IN DETERMINING THAT MOTHER MET HER BURDEN TO RELOCATE [THREE] YOUNG CHILDREN 500 MILES AWAY BECAUSE THE CHILDREN HAVE LITTLE FAMILY AND FEW OR NO CONTACTS IN NORTH CAROLINA AND MOTHER FAILED TO PRESENT NEARLY ANY EVIDENCE REGARDING MEETING THE CHILDREN'S NEEDS IN NORTH CAROLINA, HAD NOT SPOKEN TO SCHOOL OFFICIALS OR COACHES, HAD NOT CHOSEN A SCHOOL, AND ONLY DID INVESTIGATION AFTER THE THIRD DAY OF TRIAL AND ONLY THEN AFTER THE COURT REPEATEDLY REMINDED MOTHER OF HER OBLIGATION TO DO SO.

4. BASED ON THE CHILDREN'S WELL ESTABLISHED CONTACTS, CHURCH, SCHOOL, ACTIVITIES AND FAMILY IN ALLEGHENY COUNTY AND MOTHER'S LACK OF INVESTIGATION/PREPARATION FOR ANY MOVE, THE TRIAL COURT FAILED TO ACT IN THE CHILDREN'S BEST INTEREST BY PERMITTING THE MOVE AND CHANGING PRIMARY CUSTODY.

5. THE TRIAL COURT ERRED BY, WHEN CONSIDERING THE BEST INTEREST OF THE CHILDREN, NOT GIVING APPROPRIATE WEIGHT TO MOTHER'S EXTREME ALCOHOLISM, THE CHANCE OF

RECIDIVISM OF HER BEHAVIOR, ESPECIALLY GIVEN MOTHER'S FAILURE TO ENTER EVIDENCE REGARDING HER ABILITY TO REMAIN SOBER WHILE LIVING INDEPENDENTLY OR WITH THE STRESSORS OF RAISING THREE YOUNG CHILDREN, AND HER UTTER FAILURE TO RECOGNIZE THE SAME AS A PROBLEM, INSTEAD BLAMING FATHER FOR HER ALCOHOLISM.

Father's Brief at 12–13.²

For his first issue on appeal, Father claims that the trial court erred by failing to dismiss Mother's claim for primary physical custody. Id. at 47–50. Father's claim is based on the application of 23 Pa.C.S.A. § 5337, the relocation provision of the Child Custody Act, 23 Pa.C.S.A. § 5321, et seq. Father argues that Mother failed to comply with the relocation procedure set forth in 23 Pa.C.S.A. § 5337(c) because she failed to provide him with timely notice of her intention to relocate the children or the information section 5337(c)(3) requires the relocating party to provide to the nonrelocating party. Father's Brief at 47–48. Father further asserts that he did not receive the benefit of the provisions of section 5337(j)³ , which addresses how a court may consider a party's failure to provide reasonable notice. Id. at 49–50. Thus, Father's claim requires us to determine whether this case constitutes a relocation that per se triggers section 5337 of the Child Custody Act.

Issues of statutory interpretation are questions of law where “the appellate standard of review is de novo and the appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d 946, 951 (Pa.Super.2013) (quoting In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa.Super.2007) ), appeal denied, 620 Pa. 727, 70 A.3d 808 (2013). Regarding statutory interpretation, our Court has long recognized the following principles of statutory construction set forth in the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.:

The goal in interpreting any statute is to ascertain and effectuate the intention of the General Assembly. Our Supreme Court has stated that the plain language of a statute is in general the best indication of the legislative intent that gave rise to the statute. When the language is clear, explicit, and free from any ambiguity, we discern intent from the language alone, and not from the arguments based on legislative history or ‘spirit’ of the statute. We must construe words and phrases in the statute according to their common and approved usage. We also must construe a statute in such a way as to give effect to all its provisions, if possible, thereby avoiding the need to label any provision as mere surplusage.

Under Section 1921(c), the court resorts to considerations of ‘purpose’ and ‘object’ of the legislature when the words of a statute are not explicit.... Finally, it is presumed that the

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