J-S60034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.V.M., JR. 

Appellant

v.

J.S.C.-K.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1219 MDA 2019

Appeal from the Order Entered June 13, 2019

In the Court of Common Pleas of Clinton County

Civil Division at No(s): 1478-2017, 

894-2006

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 21, 2020

P.V.M., Jr. (“Father”) appeals from the order entered June 13, 2019, in the 

Court of Common Pleas of Clinton County granting the request of J.S.C.-K. 

(“Mother”) to relocate with the parties’ fourteen-year-old son, P.M.,1 and twelveyear-old daughter, J.M.2 (collectively, “the children”), from Beech Creek, 

Pennsylvania, to Liberty, Missouri. Upon careful review, we vacate and remand 

for further proceedings.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 P.M. was born in October 2004.

2 J.M. was born in September 2006.
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This appeal arises from Mother’s petition for modification and relocation 

filed on March 28, 2019, requesting to relocate with P.M. and J.M. to the home 

of S.D.S., whom she planned to marry on November 9, 2019.3 In her petition, 

Mother asserted, “Father’s relationship with the children is poor[,]” and “the 

children want to relocate.” Petition, 3/28/19, at Paragraphs 5-6. Father filed a 

counter-affidavit challenging those assertions. The trial court held a hearing on 

June 7, 2019.

By way of background, the record reveals an underlying protracted 

custody matter initiated by Mother in 2006 in the Clinton County Court of 

Common Pleas. Throughout the history of this case, the court awarded the 

parties shared legal custody and Mother primary physical custody. As best we 

can discern, Mother relocated to Centre County in 2013 after which the Centre 

County Court of Common Pleas assumed venue. By August 2017, Mother had 

returned to Clinton County and Centre County Court of Common Pleas 

transferred the case back to Clinton County. In November 2017, Father was 

awarded partial physical custody.

In November 2017, Clinton County Court of Common Pleas appointed a 

guardian ad litem (“GAL”) to represent the best interests of P.M. and J.M.4 The 

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3 Father is married to L.M. (“Stepmother”) and they have two children, who were 

five and nearly two years old at the time of the proceeding.

4 The record reveals that the same GAL was appointed during the custody 

litigation in Centre County.
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custody order then in effect, dated February 16, 2017, granted Father partial 

custody on alternating weekends from Thursday to Sunday and one evening 

each week from 4:30 p.m. to 7:00 p.m. The order also set forth a holiday 

schedule.

By report to the court on November 14, 2017, when P.M. and J.M. were 

thirteen and eleven years old, the GAL stated that the children alleged “violent 

incidents” by Father against P.M. occurred on November 5 and 8, 2017. GAL 

Memorandum, 11/14/17, at 2. Prior to the GAL completing his investigation 

regarding “[w]hether the issues are behavioral on the part of the minor children 

or parental concerns of Father. . .[,]” he recommended that (1) Father’s partial 

physical custody be temporarily suspended; and (2) the parties be referred to 

Robert Meacham, M.S., a licensed psychologist, for a psychological evaluation of 

the children and Father. GAL Memorandum, 11/14/17, at 3. By interim orders 

dated November 15 and 22, 2017, the trial court, among other things, (1) 

suspended Father’s partial physical custody; (2) directed Clinton County Children 

and Youth Social Services Agency (“CYS”) to investigate the matter;

5 and (3)

referred the parties to Mr. Meacham, a psychologist.

6

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5 The record does not include any evidence related to the CYS investigation.

6 Mr. Meacham described the incidents in November 2017 as “two verbal and/or 

physical altercations between [F]ather and [P.M.] provoked by [P.M.] being 

verbally oppositional.” Psychological Evaluation, 5/28/19, at 2-3.
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Mr. Meacham filed reports with the trial court, the parties’ counsel and the 

GAL on April 18, 2018, May 8, 2018, June 7, 2018, August 21, 2018, October 3, 

2018, December 13, 2018, January 23, 2019, and March 26, 2019. The 

memoranda provided recommendations regarding reunification and a partial 

custody schedule for Father, and the court issued interim orders implementing 

each of the recommendations.

7

In April 2018, Mr. Meacham explained that only J.M. wished to reconcile

with Father, and their reconciliation subsequently progressed with Mr. 

Meacham’s involvement. In October 2018, Mr. Meacham stated that P.M. 

wanted to reconcile with Father. Mr. Meacham recommended that Father be 

granted custody of the children on alternating weekends for two to four hours, 

for a total of four weekends. In December 2018, Mr. Meacham stated that the 

children wished to visit with Father from 12:00 p.m. to 8:00 p.m. on Christmas 

Eve and on alternating weekends in January 2019 from 12:00 p.m. to 8:00 p.m.

On January 23, 2019, Mr. Meacham stated, “visits with [F]ather have been 

going very well. It is clear from their interactions in my presence here today 

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7

In addition to implementing Mr. Meacham’s recommendations, the interim

orders directed that if either party disagreed with the recommendations, then 

the party shall file a petition for a prompt hearing. Mother filed a petition for a 

prompt hearing pursuant to the order dated August 28, 2018, which 

implemented the August 21, 2018 recommendations. By agreement of the 

parties, the court vacated the August 28, 2018 order and directed the parties to 

meet with Mr. Meacham on October 3, 2018, for ongoing reunification services. 

The parties did not file a petition with respect to any of the other interim orders.
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that the children are enjoying their expanded [time] with [F]ather.” Memo, 

1/23/19, at 1. Further, Mr. Meacham stated that the children “would like to 

begin 24 hour visits from Saturday to Sunday, noon to noon. . . .” Id. Mr. 

Meacham recommended that this occur on alternating weekends.

On March 26, 2019, two days before Mother filed the petition for 

modification and relocation, Mr. Meacham stated that since his recommendation 

on January 23, 2019, “the children have had at least 24 hour visits every other 

weekend.” Memo, 3/36/19, at 1. Mr. Meacham stated that the parties and the 

children agreed that Father’s partial custody be increased to alternating 

weekends from Saturday at 12:00 p.m. to Sunday at 5:00 p.m. and additional 

time as agreed to by the parties. In addition, Mr. Meacham recommended that 

Father be granted custody one week in June, July and August. Rather than 

implement these recommendations, by order dated April 2, 2019, the trial court 

decided to address “this matter the same date and time as the hearing on the 

[r]elocation request of Mother.” Order, 4/2/19.

Finally, Mr. Meacham issued a psychological evaluation on May 28, 2019, 

shortly before the subject proceedings. Mr. Meacham set forth the following 

factors, in part, which he concluded were significant for the court in considering 

Mother’s relocation petition: (1) “Both children have indicated a preference to 

relocate to Missouri with both stating that they would look forward to seeing 

their father during extended breaks from school and during the summer. . . .”; 

and (2) “There is no doubt that moving the children over 1000 miles away would 
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significantly interfere with [F]ather’s custodial time over the status quo, 

particularly given the financial situation of both [M]other and [F]ather that would 

make it difficult to finance frequent visitation between Pennsylvania and 

Missouri.”8 Psychological Evaluation, 5/28/19, at 4-5.

Likewise, the GAL, on June 4, 2019, reported to the court that he met 

separately with P.M. and J.M., who expressed their preference to relocate with 

Mother and proposed being with Father for extended periods over the summer 

and during holiday breaks. The GAL opined that the children are more bonded 

to Mother than to Father, and that breaking that bond would be detrimental to 

them. The GAL also recommended that the court approve Mother’s relocation 

request.

During the hearing on Mother’s modification and relocation request, 

Mother and S.D.S. testified. Father was not present for the hearing9 but he was 

represented by counsel who conducted cross-examination of both witnesses. 

The trial court also took judicial notice of the reports of the GAL and Mr. 

Meacham, which were in the record.

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8 Mother testified that she worked “in the . . . department” at Lock Haven 

University. N.T., 6/7/19, at 21. Mother testified that she did not yet seek 

employment in Missouri; however, when relocated, she testified, “I’ll probably 

stay in . . . clerical work.” N.T., 6/7/19, at 31. The record is devoid of any 

evidence regarding Father’s employment.

9 There is no indication in the record or in Father’s brief why he was not present 

for the hearing.
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On June 13, 2019, the trial court granted Mother’s relocation request. In 

addition, the court granted the parties shared legal custody, Mother primary 

physical custody, and Father partial physical custody six consecutive weeks each 

summer, during the Christmas holiday from December 26th until two days before 

school resumes in even-numbered years, and one day after school ends until 

two days before school resumes in odd-numbered years. The court directed that 

Mother “shall be responsible for all expenses in transporting the children to and 

from Pennsylvania for Father to exercise partial custody. . . .” Order, 6/13/19, 

at Paragraph 5. The court also directed that when Mother is in Pennsylvania for 

more than 72 hours, “Father shall be given an opportunity to spend time with 

the children.” Id. at Paragraph 8. Finally, the court directed that Father “shall 

be entitled to one video chat with the children at least one time per week.” Id.

at Paragraph 7.

Father timely filed a notice of appeal and a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).10 On July 

19, 2019, the trial court filed an opinion pursuant to Rule 1925(a).

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10 Father’s notice of appeal includes docket numbers 1478-2017 and 894-2006. 

This Court issued a rule to show cause upon Father to explain why his appeal 

should not be quashed pursuant to Pa.R.A.P. 341(a) and its Note, which require 

the filing of separate notices of appeal when a single order resolves issues arising 

on more than one trial court docket. Further, our Supreme Court, in 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held that a notice of 

appeal that fails to comply with Rule 341 and its Note shall result in quashing

the appeal. This Court, in In the Matter of M.P., 204 A.3d 976 (Pa. Super. 

2019), held that Walker applies in civil and family cases.
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On appeal, Father presents the following issues for our review:

1. Did the trial court err as a matter of law in failing to address 

both the sixteen factors outlined in 23 Pa.C.S.A. § 5328(a) factors 

and the ten factors of 23 Pa.C.S.A. § 5337(h) when granting 

Mother’s [p]etition for [m]odification/[r]elocation?

2. If the court did not err as a matter of law, was there an abuse 

of discretion in finding the 23 Pa.C.S.A. § 5337 factors favored 

Mother, where the evidence presented failed to satisfy her burden of 

proof[?]

Father’s brief at 4.11

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In his timely response, Father asserted that Rule 341 is inapplicable. 

Specifically, he asserted that docket number 894-2006 related to the Clinton 

County litigation that commenced in 2006. On November 22, 2017, subsequent 

to the transfer of the case from Centre County, Clinton County Court of Common 

Pleas ordered that docket number 894-2006 merge with docket number 1478-

2017. Further, the order directed that all future custody filings be docketed at 

1478-2017. Therefore, Father asserted that at the time of this appeal, the only 

open docket was 1478-2017.

This Court discharged the Rule and permitted Father to file a supplemental brief 

on the issue. Father asserts, “this is an issue of clerical error. . . .” Father’s 

supplemental brief at 5. Father explains that the subject order is entered on 

docket number 1478-2017. However, the order is also entered on docket 

number 894-2006 and this is due to clerical error.

Upon review, the November 22, 2017 order directed that future filings be 

docketed at 1478-2017, but the parties and the trial court continued to include 

both docket numbers in filings thereafter. We find no reason to disagree with 

Father that this was inadvertent error. Therefore, we deem the subject order as

resolving issues arising only on docket number 1478-2017. As a result, Rule 

341(a) and its Note are inapplicable in this case and there is no reason to quash 

Father’s appeal.

11 “In reviewing a custody and relocation order, our scope is of the broadest type 

and our standard is an abuse of discretion. We must accept findings of the trial 

court that are supported by competent evidence of record, as our role does not 
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The primary concern in any custody case is the best interests of the child. 

“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 well[-]being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. 

Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004).

Child custody actions are governed by the Child Custody Act (“Act”), 23 

Pa.C.S. §§ 5321-5340. Specifically, when deciding a petition to modify custody, 

a court must conduct a thorough analysis of the best interests of the child based 

on the relevant Section 5328(a) factors. E.D. v. M.P., 33 A.3d 73, 80 (Pa. 

Super. 2011). “All of the factors listed in section 5328(a) are required to be 

considered by the trial court when entering a custody order.” J.R.M. v. J.E.A., 

33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

Likewise, Section 5337(h) requires courts to consider all relocation factors

when there is a relocation request. E.D., 33 A.3d at 80. It is well-settled that 

when making a decision on relocation that also involves a custody decision, “the 

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include making independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to the presiding 

trial judge who viewed and assessed the witnesses first-hand. However, we are 

not bound by the trial court’s deductions or inferences from its factual findings. 

Ultimately, the test is whether the trial court’s conclusions are unreasonable as 

shown by the evidence of record. We may reject the conclusions of the trial 

court only if they involve an error of law, or are unreasonable in light of the 

sustainable findings of the trial court.” C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. 

Super. 2012) (citation omitted).
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trial court must consider all ten relocation factors and all sixteen custody factors” 

outlined in the Act. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013).

Section 5328(a) of the Act provides as follows.

§ 5328. Factors to consider when awarding custody.

(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.
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(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.

(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).

Section 5337(h) of the Act provides as follows.

(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).

As the party proposing relocation, Mother has the burden of proving that 

relocation will serve the children’s best interest as set forth under Section 

5337(h). See 23 Pa.C.S. § 5337(i)(1). In addition, “[e]ach party has the burden 

of establishing the integrity of that party’s motives in either seeking the 

relocation or seeking to prevent the relocation.” 23 Pa.C.S. § 5337(i)(2).
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In his first issue on appeal, Father asserts that the trial court erred as a 

matter of law by failing to consider both Sections 5328(a) and 5337(h) in 

granting Mother’s relocation request.

In its Rule 1925(a) opinion, the trial court states that it only addressed the 

Section 5337(h) relocation factors, explaining, “Mother was previously awarded 

primary custody of the children[,] and[,] therefore, this court did not deem it 

necessary to address those factors.” Trial Court Opinion, 7/19/19, at 2. The 

trial court distinguishes A.M.S., supra, because both parties were seeking 

primary physical custody in that case, while in this case “no petition was pending 

concerning primary custody.” Id. This is a distinction not recognized by 

statutory or case law.

Our case law is clear that when a trial court modifies an existing custody 

order when deciding a relocation request, the court must consider both the 

Section 5328(a) custody factors and the Section 5337(h) relocation factors. See 

A.V. v. S.T., 87 A.3d 818, 824 (Pa. Super. 2014) (“Here, the court’s opinion in 

support of its . . . order addressed only the relocation factors. By omitting 

application of the Section 5328(a) custody factors, although making a new award 

of custody, the trial court erred.”); see also A.M.S., 87 A.3d at 835 (“The trial 
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court must consider all ten relocation factors and all sixteen custody factors when 

making a decision on relocation that also involves a custody decision.”).12

In this case, when the trial court decided to grant Mother’s request to 

relocate with the children to Missouri, it had to issue a new custody order. 

Mother initially recognized this by requesting modification of the existing order, 

along with relocation. By the time she filed her petition, Father’s partial custody 

had steadily increased after being temporarily suspended in November 2017. 

He was then exercising custody for “at least 24 hours” on alternating weekends. 

Memo, 3/26/19, at 1.

Further, by order dated April 2, 2019, the trial court stated it would 

address during the relocation hearing Mr. Meacham’s March 26, 2019 

recommendation for an additional increase in Father’s partial custody. However, 

our review of the notes of testimony reveals that the court did not address those

recommendations. In fact, the court failed to consider any of the Section 

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12 This Court has held that Section 5328(a) is not implicated in cases where an 

order does not change the “type” of the underlying custody award or the amount 

of custodial time awarded to a party. See M.O. v. J.T.R., 85 A.3d 1058 (Pa. 

Super. 2014). Here, Mother filed a petition for modification and relocation, and 

the court issued a new custody order that changed Father’s custodial time. 

Moreover, this Court has held that even in cases where the trial court merely 

reaffirms its prior custody order, it is nevertheless making a ruling on a request 

to change the form of physical custody. As such, the trial court is bound to 

decide whether the order remains in the child’s best interest and it is obligated 

to consider the factors set forth in Section 5328(a). See S.W.D. v. S.A.R., 96 

A.3d 396, 406 (Pa. Super. 2014).
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5328(a) custody factors in reaching its relocation and custody modification 

decision. As such, the court committed an error of law.13

Accordingly, we vacate the June 13, 2019 order and remand to the trial 

court to hold an additional hearing for the parties to develop evidence relevant 

to the Section 5328(a) custody factors and the Section 5337(h) relocation 

factors. The trial court shall then issue a new order ruling on the parties’ custody 

and relocation requests.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2020

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13 Based on this disposition, we need not consider Father’s second issue.