J-A07023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.G.                                   :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                    Appellant           :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 B.N.                                   :   No. 1728 MDA 2017

              Appeal from the Order Entered October 31, 2017
            in the Court of Common Pleas of Lackawanna County
                  Orphans' Court at No(s): 2015-FC-41365


BEFORE:    PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JUNE 27, 2018

      M.G. (“Father”) appeals from the October 31, 2017 order granting B.N.’s

(“Mother’s”) petition to modify the parties’ child custody arrangement and

permitting Mother to relocate with E.M.G. (“Child”), the parties’ three-year-

old son. We affirm.

      The trial court summarized the factual background and procedural

history of this case as follows:

      On October 22, 2015, Father filed a complaint in custody seeking
      primary physical custody and legal custody of Child. A conciliation
      conference was scheduled for December 1, 2015. Prior to the
      conciliation conference, Father and Mother entered into a
      stipulated interim order dated November 12, 2015 where the
      parties agreed to have shared legal and physical custody of Child.
      The parties appeared on December 1, 2015 for the conciliation




____________________________________
* Former Justice specially assigned to the Superior Court.
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       conference. At that time, the parties entered into a stipulation,
       which was made an order of court dated December 9, 2015.[1]

       On March 31, 2016, Mother filed a petition for modification of
       custody averring that the current custody schedule was no longer
       in the best interest of Child as a result of too many custody
       exchanges between the parties that have a high level conflict of
       with each other, among other things. The parties agreed to co-
       parenting classes and to have the prior order remain in effect with
       a review before the trial court within 60 days.

                                          ***

       On February 2, 2017, Mother filed a petition for modification of
       custody. Then, on March 23, 2017, Mother filed a petition for
       relocation.

Trial Court Opinion, 11/29/17, at 1-4 (cleaned up).

       On October 31, 2017, the trial court granted Mother’s petition for

relocation permitting her to move from Lackawanna County, Pennsylvania to

Philipsburg, New Jersey. The trial court also modified the parties’ custody

arrangement by granting (1) Mother physical custody from 4:00 p.m. Sunday

to 4:00 p.m. Wednesday; Father physical custody from 4:00 p.m. Wednesday

to 9:00 a.m. Saturday; and (3) each party, on alternating weeks, physical

custody from 9:00 a.m. Saturday to 4:00 p.m. Sunday. This timely appeal

followed.2

       Father presents three issues for our review:


____________________________________________


1Such stipulation provided for multiple exchanges each day in order to
maximize Father’s time with Child when Mother was working and vice versa.

2Father included all issues raised on appeal in his concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).

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        1. Whether the trial court abused its discretion and erred as a
           matter of law in denying Father’s [request for primary physical
           custody]?

        2. Whether the trial court abused its discretion and erred as a
           matter of law in finding that Mother’s proposed relocation is in
           [Child’s] best interests pursuant to the relocation factors at 23
           Pa.C.S.[A.] §5337(h)?

        3. Whether the trial court abused its discretion and erred as a
           matter of law in adopting Mother’s proposed custody schedule
           before the completion of the hearing regarding Mother’s
           proposed relocation, contrary to 23 Pa.C.S.[A.] §5337(f)?

Father’s Brief at 10.3

        In his first issue, Father argues the trial court erred in modifying the

parties’ custody schedule and not granting him primary physical custody of

Child. This argument is waived. Father does not set forth any argument in

his brief as to how the trial court erred in this respect.           Instead, he

incorporates by reference the analysis of the factors listed in 23 Pa.C.S.A. §

5328 regarding the modification of custody orders contained in a pleading he

filed before the trial court. See Father’s Brief at 26. As our Supreme Court

has explained, “our appellate rules do not allow incorporation by reference of

arguments contained in briefs filed with other tribunals, or briefs attached as

appendices, as a substitute for the proper presentation of arguments in the

body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343




____________________________________________


3   We have renumbered the issues for ease of disposition.

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(Pa. 2011) (citation omitted); see Pa.R.A.P. 2119(a). Accordingly, Father’s

first issue is waived. See Pa.R.A.P. 2101, 2119(a).

      In his second issue, Father challenges the trial court’s order permitting

Mother’s relocation. He argues that the trial court’s order deprives Child of

the frequency and continuity of daily contact with Father and his extended

family in Lackawanna County. Father asserts that Mother’s sole reason for

relocation is her own desire to move out of her parents’ home in Lackawanna

County and into the residence of her fiancé, E.J. (“Fiancé”). Father contends

that Mother’s relocation is not motivated by a new employment opportunity.

Instead, he believes Mother will financially depend on Fiancé if she moves to

New Jersey. Father asserts that there is no evidence in the record to show

that Child was ever harmed by the daily contact with both parties and

numerous extended family members in Lackawanna County, and that neither

obtaining additional exclusive space nor reducing the number of custody

exchanges supports a relocation to New Jersey.

      We review a trial court’s relocation order for an abuse of discretion and

our scope of review is plenary. S.J.S. v. M.J.S., 76 A.3d 541, 547 (Pa. Super.

2013) (citation omitted).   A trial court must consider the following factors

when considering a custodial parent’s request to relocate:

      (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.




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      (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.

      (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.A. § 5337(h).

      The sole issue Father preserved related to these factors is whether the

trial court’s factual findings with respect to the first, second, sixth and seventh

relocation factors are supported by the record.       Father does not set forth

argument in his brief with respect to the other six factors.          Hence, any


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argument related to those factors is waived.       See Pa.R.A.P. 2119(a).      We

conclude that the trial court’s factual findings with respect to the first, second,

sixth and seventh relocation factors are supported by the record.

      With respect to the first factor, the trial court recognized the bonds Child

has with both parties and their extended families in Lackawanna County.

Nonetheless, it found the first factor weighed in favor of permitting Mother’s

relocation because the relocation would not interfere with Child’s relationships

with Father or the parties’ extended families. Specifically, the trial court noted

that the parties’ revised custody arrangement ensures that Child is present

during Thursday dinners Father has with his extended family and permits Child

to be present for one-half of the Sunday dinners Father has with his immediate

family. See N.T., 7/14/17, at 138, 211-212. Moreover, the trial court found

that Maternal Grandmother travels to New Jersey between two and four times

per month and would be available to assist Mother in caring for Child in New

Jersey. N.T., 6/7/17, at 66. These factual determinations were reasonable in

light of the evidence presented at the custody trial. Hence, we will not disturb

the trial court’s factual findings with respect to section 5337(h)(1).

      The trial court found the second relocation factor neutral. It concluded

that, because Child was not attending school nor did he have any meaningful

friendships, moving to New Jersey would not affect his physical, educational,

or emotional development. Moreover, the trial court noted that Child could

still attend the daycare Father preferred on those days Father has custody of


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Child. These factual findings are reasonable in light of the evidence presented

at the custody trial. Therefore, we will not disturb the trial court’s factual

findings as to section 5337(h)(2).

      Father focuses on the economic effect of the relocation on Mother when

discussing the sixth relocation factor. Father ignores the plain language of

section 5337(h)(6), which requires trial courts to consider the emotional effect

a potential relocation will have on the relocating parent. Father concedes in

his brief that the relocation will benefit Mother emotionally. See Father’s Brief

at 18-19. With respect to the economic portion of section 5337(h)(6), the

trial court credited Mother’s testimony that the new employment opportunity

was beneficial in the long run. The trial court reasoned that the ability to

expand a dance program year-round outweighed working more hours nine

months per year. This was a reasonable factual determination supported by

Mother’s former guardian’s testimony along with her current employer’s

testimony. See N.T, 6/7/17, at 35 and 152. Father’s arguments as to why

the move will not benefit Mother go to the weight of the evidence. As an

appellate court, we may not reweigh the evidence where, as here, the trial

court’s factual findings are supported by the record and the weighing of the

evidence is neither arbitrary nor capricious. Hence, we will not disturb the

trial court’s factual findings or weighing of the evidence related to section

5337(h)(6).




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      The trial court’s factual findings with respect to the seventh relocation

factor are also supported by the record.       The trial court credited Mother’s

testimony that relocating would help facilitate a shared custody schedule with

Father. Moreover, Child will have his own bedroom and a shared playroom in

the New Jersey residence. Id. at 178. As Child is not attending school, the

trial court reasonably determined that it would enhance his quality of life to

have smoother custody exchanges, his own bedroom, and his own playroom.

Father’s arguments as to why the move will not benefit Child go to the weight

of the evidence. As an appellate court, we may not reweigh the evidence

where, as here, the trial court’s factual findings are supported by the record

and the weighing of the evidence is neither arbitrary nor capricious. Hence,

we will not disturb the trial court’s factual findings as to the seventh relocation

factor.

      Father also argues that the trial court’s relocation decision evidenced

bias. To the extent Father argues that the trial court should have recused

itself, this argument is waived.        See League of Women Voters of

Pennsylvania v. Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (citation

omitted) (party must seek recusal at the earliest opportunity possible). To

the extent that Father argues that the trial court abused its discretion by

granting Mother’s relocation request as a result of bias, this argument is

without merit. The trial court carefully considered the testimony given at the

entire custody trial and issued detailed factual findings and conclusions of law.


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There is no evidence that the trial court was biased against Father. Hence,

Father is not entitled to relief on his second claim of error.

      In his final issue, Father argues that the trial court improperly granted

Mother’s request to modify the parties’ custody arrangement at the conclusion

of the first day of the custody trial.    To the extent Father challenges that

interim order, this issue is moot.    “If events occur to eliminate the claim or

controversy at any stage in the process, the [issue] becomes moot.” In re

S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted). This Court has

held that a challenge to an interim custody order becomes moot when a final

custody order is entered. K.W. v. S.L., 157 A.3d 498, 499 n.1 (Pa. Super.

2017). To the extent that Father argues that this interim order evidences the

trial court’s bias, we reject that argument for the reasons set forth above.

Therefore, Father is not entitled to relief on his third claim of error.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




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