Carrero v. Lopez

300 A.3d 494

Jasmine CARRERO, Appellant v. Aubeen LOPEZ

No. 1606 MDA 2022

Superior Court of Pennsylvania.

Argued April 11, 2023

Filed July 28, 2023

Juliana Petro, Scranton, for appellant.

Raymond W. Ferrario, Scranton, for appellee.

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.:

Jasmine Carrero (Mother) appeals the decision of the Lackawanna County Court of Common Pleas, which denied her request to relocate from Pennsylvania to Florida with the parties’ 7-year-old daughter, L.L., and 1-year-old son, J.C. (the Children). Aubeen Lopez (Father), a resident of Rhode Island, opposed Mother's request. Mother argues inter alia that the trial court's findings under the Child Custody Act constituted an abuse of discretion. See 23 Pa.C.S.A. § 5337(h). After careful review, we agree and reverse the trial court's decision.

The facts of this case are largely undisputed. Neither Mother, nor Father has extensive connections with Pennsylvania. In 2017, Mother moved in with her parents, who temporarily resided in Lackawanna County. Since then, her parents returned to Florida. In 2018, Mother filed a custody action in Lackawanna County against Father, who was then a resident of New York City. Pursuant to an agreed upon order, Mother received primary physical custody of L.L. Father was awarded partial custody on alternating weekends. For a short period in 2020, the parties reconciled. During this reconciliation, Mother and Father lived together in Bayonne, New Jersey. The parties broke up several months later, but not before Mother became pregnant with J.C. After the break-up, Mother returned to Pennsylvania with the Children.

The parties then sought to update the custody order. By agreed-upon interim order, dated July 23, 2021, the trial court kept primary physical custody with Mother and awarded Father "visitation with the minor children" every Friday from 4:00 p.m. until 7:30 p.m., and every Saturday from 10:00 a.m. until 1:00 p.m. ¹ The court also directed Father to obtain reunification therapy regarding L.L.

A month later, the court extended Father "periods of visitations" with the Children each Friday from 4:00 p.m. to 7:30 p.m. and on alternating weekends from Friday at 4:00 p.m. until Sunday at 2:00 p.m. In November 2021, the court further awarded Father custodial time with the Children during Thanksgiving and Christmas of 2021. That custody order provided:

All additional visits will be worked out by the parties after consultation with [L.L.’s] therapist. It is FURTHER ORDERED that Natural Father shall reach out to the minor child's therapist at the Aaron Center and begin family reunification with the child.

Order, 11/22/21 (emphasis in original). ²

At the end of the following summer, in August of 2022, Father began attending law school in Rhode Island. He continued to exercise his partial custody in New York, where his extended family lived. That same month, Mother notified Father of her proposed relocation with the Children to Largo, Florida – specifically to a housing complex where she alleged that many of her relatives resided. Father objected to the proposed relocation. On September 1, 2022, Mother filed a formal petition for relocation and to modify custody. After a virtual hearing on September 29, 2022, by order dated October 19, 2022, the trial court denied Mother's petition for relocation. Mother timely filed this appeal.

Mother presents the following issues for our review, which we have re-ordered for ease of disposition:

1. Did the trial court commit an error of law by failing to properly weigh the relocation factors in light of [ Gruber v. Gruber , 400 Pa.Super. 174, 583 A.2d 434 (1990) ] and related case law?

2. Did the trial court commit an error of law by imposing on [Mother] the requirement to demonstrate a separate benefit to the Children, although the significant benefit flowing from [Mother, as the] custodial parent, had been established?

3. Whether the trial court abused its discretion when deciding that the shifting visitation arrangements defeated the proposed move which offers "significant" financial and emotional benefits to [Mother, as the] primary custodial parent?

4. Whether the trial court committed an error of law and abuse of discretion by denying [Mother's] relocation petition?

5. Whether the trial court, by its order dated October 19, 2022, erred in failing to consider the best interest [ ] factors, as described by the Legislature in 23 Pa.C.S.A. § 5328(a) ?

Mother's Brief at 4-5 (style adjusted).

Mother's first four appellate issues present two distinct, but interconnected challenges to the trial court's decision. First, Mother reasons that the court had to apply Section 5337(h) in accordance with Gruber (and its progeny), which was decided before the Legislature enacted the current iteration of the Child Custody Act in 2011. Failing that, Mother argues that the court's conclusions under Section 5337(h) of the Child Custody Act constituted an abuse of discretion. In her final appellate issue, Mother argues the court erred when it failed to analyze the custody factors under Section 5328(a).

Our discussion begins with Mother's argument that Gruber still governs, notwithstanding the enactment of Section 5337. To resolve this claim, we abide by the following scope and standard of review:

The interpretation and application of a statute is a question of law that compels plenary review to determine whether the trial court committed an error of law. As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary.

E.C.S. v. M.C.S. , 256 A.3d 449, 454 (Pa. Super. 2021) (citation omitted).

The crux of Mother's argument is this: because Section 5337 codified the three-factor test from Gruber , that case and its progeny remain good law. And under a Gruber analysis, the primary focus is whether relocation would benefit the parent. According to Mother, because the trial court determined that she would benefit from relocation, it had to grant her relocation petition, and it erred when it failed to do so.

When this Court decided Gruber , the prior iteration of the Child Custody Act was in effect. See 23 Pa.C.S.A. §§ 5301 - 5315 (Repealed). Section 5308 of that Act addressed the relocation of a party or a child as follows:

If either party intends to or does remove himself or the child from this Commonwealth after a custody order has been made, the court, on its own motion or upon motion of either party, may review the existing custody order.

23 Pa.C.S.A. § 5308 (Repealed).

In Gruber , our Court then set forth the following three-factor test to resolve relocation cases:

First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent.

[...]

Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it.

[...]

Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Gruber , 583 A.2d at 439 (emphasis added).

As for the first Gruber factor, this Court later clarified that a parent seeking relocation was not required to show an independent benefit to her children apart from a substantial improvement in the parent's quality of life. See Anderson v. McVay , 743 A.2d 472, 475 (Pa. Super. 1999) ; see also Baldwin v. Baldwin , 710 A.2d 610, 614 (Pa. Super. 1998) ; and see Zalenko v. White , 701 A.2d 227, 229 (Pa. Super. 1997). The idea was, if the relocation benefitted the parent, then the parent's benefit would automatically "flow to the children." Anderson , 743 A.2d at 475 (citing Gruber , 583 A.2d at 439 ).

In 2011, our Legislature enacted the revised Child Custody Act, which included detailed legal standards for deciding relocation cases. See 23 Pa.C.S.A. § 5337 ; see also generally §§ 5321-5340. Specifically, Section 5337(h)(1)-(10) "expanded upon [the Gruber factors] and broadened the areas of inquiry that a trial court must consider when ruling on a relocation request." Commonwealth v. Childs , 636 Pa. 322, 142 A.3d 823 (2016) (citing E.D. v. M.P. , 33 A.3d 73, 79 (Pa. Super. 2011) ). Each of the three Gruber factors has an equivalent in Section 5337. The first Gruber factor correlates to Section 5337(h)(6) and (h)(7). The second Gruber factor, correlates to Section 5337(i) (Burden of proof). The third Gruber factor correlates to Section 5337(h)(3).

Although the text of the Gruber factors is substantially similar to their statutory equivalents, there are critical differences between the analyses. Previously, under the first Gruber factor, any benefit to the parent automatically flowed to the child; if relocation was good for the parent, it was good for the child. See Anderson , 743 A.2d at 475 ; see also Mother's Brief at 12-13. The inquiry was singular. Now, under Section 5337(h), the inquiry regarding the parent's benefit is a separate inquiry from the child's benefit. See 23 Pa.C.S.A. § 5337(h)(6) ("Whether the relocation would enhance the general quality of life for the party ...") cf. § 5337(h)(7) ("Whether the relocation would enhance the general quality of life for the child ...") (emphasis added).

Moreover, the two analyses also differ in scope. This Court recognized the distinction within months of the Legislature's enactment of the revised Child Custody Act:

Section 5337 also alters the legal standards that a trial court must consider when ruling on a request to relocate.

[...] In particular, while the Gruber test required consideration generally of the "potential advantages of the proposed move and the likelihood that the

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