Pierre v. Alexander

270 A.3d 1153 (Table)

Monia PIERRE, Appellee

v.Nick ALEXANDER, Appellant

No. 683 WDA 2021

Superior Court of Pennsylvania.

Filed: December 21, 2021

MEMORANDUM BY KING, J.:

Appellant, Nick Alexander ("Father"), appeals from the order entered in the Allegheny County Court of Common Pleas, which awarded Appellee, Monia Pierre ("Mother") primary physical custody of the parties’ minor child ("Child"). We affirm.

The relevant facts and procedural history of this appeal are as follows. Mother and Father met in Florida in 2009. The parties never married. Child was born in July 2011. Five months later, the parties and Child moved to Pennsylvania because Father received a favorable job offer. In 2015, the parties separated.

The trial court opinion fully and correctly set forth the remaining procedural history of this case:

On August 3, 2017, Father filed a Complaint for Custody, seeking shared legal and physical custody. On January 23, 2018, Mother presented a Petition for Emergency Custody of Child alleging Father took Child out of state without Mother's consent, withheld the child for thirteen days, and had the child miss 3 days of school. On January 23, 2018, [the trial c]ourt ordered that Mother and Father shall share legal custody of Child, Child shall be primarily with Mother and partially with Father as the parties agree, that neither party shall remove the Child from Allegheny County without the other [party's] written consent, and the parties shall proceed through Generations.

On February 13, 2018, Father presented a Motion for Special Relief requesting [that the trial c]ourt grant him shared legal and physical custody pending the conciliation with the Domestic Relations Officer. On February 13, 2018, [the trial c]ourt ordered that the parties would share legal custody of Child, neither party would change the visitation schedule without the other party's consent, neither party shall remove Child from Allegheny County without the other party's written consent, and the parties would proceed through Generations.

On March 16, 2018, Father presented a Motion for Special Relief seeking a modification of the order to grant not only shared legal custody but also shared physical custody. On March 16, 2018, [the trial c]ourt granted an interim court order which provided as follows: the Child was with Mother every Monday and Tuesday, and every other weekend; the Child was with Father every Wednesday and Thursday and every other weekend; the parties were to use Our Family Wizard to communicate regarding co-parenting matters; and neither party was permitted to leave Pennsylvania with Child without prior written consent of the other parent.

After conciliation, on April 4, 2018, ... the parties consented and agreed to an Interim Order of Court that provided the following: the March 16, 2018 order shall remain in full force and effect with modifications; the parties would give at least 48-hour notice if either party wishes to remove the party from Allegheny County for an overnight during their custodial time.

On May 16, 2018, Father filed a Notice of Proposed Relocation to relocate with Child to Buford, Georgia. On May 18, 2018, Mother filed a Counter Affidavit Regarding Relocation objecting to Father's proposed relocation. On May 18, 2018, Father filed a Motion for Special Relief requesting the court consolidate the relocation and the judicial conciliation on Father's Complaint for Custody and schedule a hearing on both matters as soon as possible. On May 18, 2018, [the trial c]ourt ordered that an evidentiary hearing ... regarding Father's relocation petition, coupled with the judicial conciliation be heard on July 27, 2018. On July 27, 2018, the first day of the hearing on Father's request to relocate with the Child and his Complaint for Custody was held. On August 9, 2018, the parties consented and agreed to an Order that a second trial date was not needed, and that Child did not need to testify regarding the relocation matter.

On October 6, 2018, [the trial c]ourt issued an Order of Court regarding Father's request to relocate with the Child and his Complaint for Custody. The October 6, 2018 Order provided, among other things, the following: Father's Petition to Relocate with the Child was denied¹; Mother and Father would share legal custody of the Child; the Child would attend school in Mother's school district, West Allegheny; during the school year Father was entitled [to] exercise custody of the Child in Allegheny County for any weekend so long as Father gave Mother not less than 30 days’ notice; Father was entitled to exercise custody of the Child in Pennsylvania or Georgia during any long weekend where the Child did not have school on a Friday or Monday so long as Father gave Mother 30 days’ notice; the parties would provide the court a proposed summer schedule within fourteen days of the Order; if the parties did not provide this court with a proposed summer schedule, then the court would issue a summer schedule; additionally the Child would be with Father as the parties agreed; the Child would alternate her Christmas, Thanksgiving, and Easter breaks with Mother and Father every other year; Mother and Father were entitled to two weeks of vacation with the Child; and the parent the Child was not with would have a video call with the Child within the half-hour before bedtime. On June 26, 2019, after the parties were unable to agree on a summer schedule and argument on Father's Motion to Adopt his Proposed Summer Schedule, [the trial c]ourt issued [an] Order that provided the following: the Child would be with Father for four weeks during the summer; in even years the Child shall be with Father for the four full weeks preceding and up to July 25th (so the Child would be with Father for her birthday); and in odd years the Child would be with Father for the four weeks preceding and up to July 23rd (so the Child could be with Mother for her birthday).

¹ Father had already relocated to Georgia.

On March 13, 2020, Mother filed a Petition to Modify the Custody Order and Notice of Proposed Relocation. On August 31, 2020 Father's Counter-Affidavit which was dated April 8, 2020 was filed and indicated that Father objected to the relocation and was seeking an expedited conciliation. On September 10, 2020, after Father failed to appear for the expedited conciliation on Mother's request to relocate with the child, [the trial c]ourt issued an Interim Order of Court which provided the following: the October 6, 2018 and June 26, 2019 Orders of Court shall remain in full force and effect with modifications; pending further order of court, Mother may relocate with the Child to Winter Haven, Florida; Father shall file a Praecipe (Request) for the court to schedule a hearing within 60 days of this Order; and if Father failed to file a praecipe for a hearing within 60 days, then the Order would become a Final Order. On November 24, 2020 Father filed a Complaint to Modify Custody, and an Emergency Petition for Special Relief Custody requesting the Child be with Father for Thanksgiving break and Mother cooperate with Father to make travel arrangements for the Child for the Thanksgiving break. On November 24, 2020, [the trial c]ourt issued an Order that provided the following: the parties shall strictly follow the October [6, 2018] Order of Court; Mother shall cooperate with Father in making travel arrangements for the Child; after Father failed to appear for the expedited conciliation on Mother's request to relocate with the Child, Mother was permitted to reside in Winter Haven, Florida pending further order of court; and the parties would receive a scheduling order on Mother's Petition to Modify and relocate by separate order. On December 7, 2020 Mother filed a Counterclaim for Primary Custody. On January 11, 2021 and April 9, 2021 [the trial] court held a trial on Mother and Father's Petitions to Modify the Custody Order.^[1] On May 12, 2021 [the trial] court issued an Order of Court on Mother and Father's Petitions to Modify the Custody Order which provided, among other things, the following: Mother and Father would share legal custody of the Child; the Child would attend school in Mother's school district; during the school year Father shall be entitled to exercise custody of the child in Ocala, Florida for any weekend so long as Father gives Mother 30 days’ notice; Father also is entitled to exercise custody of the Child in Florida or Georgia during any long weekend where the Child does not have school on a Monday or Friday so long as Father gives Mother 30 days’ notice; during the summer the Child shall be with Mother for a week after school ends, a week before school begins, and two weeks in the middle, and with Father for the remainder of the summer; the Child shall be with Mother for her birthday in odd years and with Father in even years; additionally the Child shall be with Father as the parties agree; the Child shall alternate her Christmas, Thanksgiving, and Spring breaks with Mother and Father; the Child shall be with Mother on Mother's Day weekend and Father on Father's Day weekend; the Child shall have a video call with the parent she is not with in the half-hour before bedtime; and the parties shall communicate via email regarding co-parenting matters except in a bona fide emergency.

(Trial Court Opinion, filed July 9, 2021, at 2-6). Father timely filed a notice of appeal and concise statement of errors on June 8, 2021.

Father now raises three issues for our review:

Whether the trial court's analysis of the sixteen (16) custody factors set forth in 23 Pa.C.S.A. § 5328(a) was unreasonable in light of the sustainable findings of the trial court.

Whether the trial court's mistaken analysis of the ten (10) relocation factors set forth in 23 Pa.C.S.A. § 5337(h) prejudiced the trial court's subsequent analysis of the sixteen (16) custody factors set forth in 23 Pa.C.S.A. § 5328(a).

Whether the trial court prejudiced the parties by causing an

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