J-S05033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W.R.K., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

R.A.K.,

Appellee No. 1063 MDA 2015

Appeal from the Order Entered May 19, 2015

in the Court of Common Pleas of Lancaster County

Civil Division at No.: Cl-14-07012

BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 05, 2016

W.R.K. (Father) appeals from the order of the Court of Common Pleas 

of Lancaster County (trial court) entered May 19, 2015, which awarded 

primary physical custody of his daughters, N.K., born in August of 2006, and 

L.K., born in July of 2008 (Children), to R.A.K. (Mother) and established a 

schedule of partial physical custody for Father. The parties share legal 

custody. The order also grants Mother’s request for relocation.1 We affirm.

The record supports the following summary of the facts of this case. 

The parties met and began an intimate relationship when Father was twenty-

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* Retired Senior Judge assigned to the Superior Court.

1

In the order complained of, the trial court states, “[Mother’s] request to 

relocate with the Children to Sinking Springs, Pennsylvania is hereby 

GRANTED.” (Order, 5/19/15).
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two years old and Mother was fifteen years old. Father denied that he knew 

Mother’s age at the time. (See N.T. Custody Hearing, 3/24/15, at 96). 

Mother became pregnant and, with parental permission, married Father in 

2006 when she was seventeen.2 

Father lives in York, Pennsylvania, with his girlfriend and works full 

time Monday through Friday from 6:00 a.m. until 2:30 p.m. Mother is a 

stay-at-home mother. She lives with her boyfriend, their infant daughter, 

and the Children, in Sinking Springs, Pennsylvania. Prior to moving in with 

her boyfriend, Mother lived with her parents in Manheim, Pennsylvania. 

Father lost his driving privileges in October of 2009 and received 

additional citations when he continued to drive while his privileges were 

suspended. Restoration of his privileges occurred in February of 2015. 

Father testified that, because of the suspension of his driving privileges, he 

agreed that Mother could have primary physical custody of the Children and 

that he would have partial physical custody every other weekend. (See id.

at 50, 53). Father testified that Mother has threatened to withhold the 

Children from him if he does not comply with her wishes. (See id. at 53, 

67-68, 77). He stated that Mother also makes derogatory statements to him 

in text messages. (See id. at 87). 

____________________________________________

2 The record before us does not indicate whether the parties are divorced or 

have begun divorce proceedings.
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Mother testified that Father did not like the fact that she did not work 

outside the home. (See id. at 143). Father testified that Mother is lazy and 

wants everything handed to her. (See id. at 100-01). Father testified that 

Mother is dependent on her boyfriend to take care of her. (See id. at 64). 

Mother, who has been the primary caregiver for the Children, testified that it 

made no sense for her to work during the parties’ marriage because all her 

earnings would have gone to pay for childcare. (See id. at 157-58). Mother 

last worked in January of 2014 at a retirement home in Manheim, 

Pennsylvania. She gave birth to her youngest child in September of 2014.

In February of 2014, shortly after she learned that she was pregnant 

with her youngest child, Mother moved approximately twenty-two additional 

miles away from Father’s residence to Sinking Springs, Pennsylvania. 

Mother informed Father of her move in February of 2014.3 After Mother 

moved, Father continued to exercise custody of the Children in accordance 

with their agreed informal custody schedule with the exception that the 

parties agreed to change the exchange location from Columbia to Lancaster. 

(See id. at 161-62). 

Father filed his notice of relocation and a complaint in custody on 

August 3, 2014. The trial court entered a temporary order of custody on 

December 24, 2014, after the parties were unable to agree on a schedule of 

____________________________________________

3 Mother never filed a formal request to relocate. (See N.T. Custody 

Hearing, 3/24/15, at 176).
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custody at a custody conference held on December 11, 2014. The trial court 

held a hearing on Father’s complaint on March 24, 2015. In addition to 

Mother and Father, the trial court heard testimony from Father’s mother, 

E.N.; the older of the two Children, N.K.; Father’s girlfriend, M.P.; Father’s 

friend, J.M.; the mother of Father’s girlfriend, R.L.; Mother’s sister, E.G.; and 

Mother’s fiancé, M.P. At a second hearing held on April 28, 2015, the trial 

court received the stipulated testimony of Mother’s parents.4 The trial court 

entered the order complained of and an accompanying opinion on May 19, 

2015. In that opinion, the trial court examined each of the sixteen statutory 

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4

 The transcript of that hearing is not part of the record before us. The trial 

court, however, in its opinion entered July 16, 2015, stated:

The parties stipulated at the April 28, 2015 hearing that 

maternal grandparents would testify that:

1. Mother is a good mother;

2. Mother’s move to Sinking Springs, Pennsylvania has only 

changed the distance Father would have to travel to the 

Children’s school;

3. If the Court denied Mother’s relocation to Sinking Springs, 

Pennsylvania, maternal grandparents would allow Mother to 

move back to their residence in Manheim, Pennsylvania;

4. Maternal grandparents are willing and able to help Mother 

with transportation;

5. Maternal grandparents have no concerns with the Children’s 

health and safety in Mother’s care;

6. When maternal grandparents visited Mother’s home, it was 

clean.

(Trial Court Opinion, 7/16/15, at 3).
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factors governing custody enumerated in 23 Pa.C.S.A. § 5328(a), and each 

of the factors governing relocation enumerated in 23 Pa.C.S.A. § 5337(h). 

Father filed his notice of appeal and statement of errors complained of 

on appeal on June 18, 2015. See Pa.R.A.P. 1925(a)(2)(i). 

Father presents the following fourteen questions for our review: 

I. Did the trial court err in that it granted primary physical 

custody to Mother without Mother ever complying with 5337 

requirements?

II. Did the trial court err in that it placed too much emphasis on 

Father’s timeline objecting to Mother’s move?

III. Did the trial court err in that it placed too little emphasis on 

Mother’s relocation and its impact on Father’s contact with the 

Children?

IV. Did the trial court err in that it placed too little emphasis on 

Mother’s inability to communicate with Father? 

V. Did the trial court err in finding that Mother’s relocation 

would enhance the quality of life of Mother and the Children?

VI. Did the trial court err in that it found that Mother’s motives 

for moving were not improper?

VII. Did the trial court err in finding Father’s home unstable?

VIII. Did the trial court err in that it failed to properly consider 

that the majority of the Children’s education occurred in 

Lancaster County?

IX. Did the court err when it did not give adequate consideration 

to Mother’s repeated acts of alienation?

X. Did the trial court err in that it failed to consider that 

Mother’s paramour and sole financial support, lied about his 

criminal history?
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XI. Did the trial court err in that it failed to require a 5329 

hearing for Mother’s paramour when it was shown that he lied 

about getting into ARD [(Accelerated Rehabilitative 

Disposition)]?[5]

XII. Did the trial court err in that it failed to consider the 

entirety of the testimony regarding Mother’s failure to provide a 

stable[,] loving, consistent and nurturing relationship with the 

Children?

XIII. Did the trial court err in that it failed to find a high level of 

conflict between the parties based upon Mother’s actions?

XIV. Did the trial court err in that it failed to take into 

consideration Mother’s abundance of lies that she admitted to in 

her testimony when making any determinations regarding the 

totality of her testimony?

(Father’s Brief, at unnumbered pages 5-8) (unnecessary capitalization 

omitted).

Our scope and standard of review is as follows:

In reviewing a custody order, our scope is of the broadest 

type and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not 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.

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5 M.P. was charged with driving under the influence (DUI) in 2010. (See

N.T. Custody Hearing, 3/24/15, at 270). 
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C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). 

We have stated, 

[T]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation 

omitted). 

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 which legitimately have an effect upon the child’s 

physical, intellectual, moral and spiritual wellbeing.” Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006) (citation omitted). 

We must accept the trial court’s findings that are supported by 

competent evidence of record, and we defer to the trial court on issues of 

credibility and weight of the evidence. If competent evidence supports the 

trial court’s findings, we will affirm even if the record could also support the 

opposite result. See In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. 

Super. 2003).

Additionally, 

 [t]he parties cannot dictate the amount of weight the 

trial court places on evidence. Rather, the paramount 

concern of the trial court is the best interest of the child. 

Appellate interference is unwarranted if the trial court’s 
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consideration of the best interest of the child was careful 

and thorough, and we are unable to find any abuse of 

discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted). 

In his first issue, Father claims that the trial court erred when it 

granted primary physical custody to Mother where she failed to comply with 

23 Pa.C.S.A. § 5337, which requires a party wishing to relocate with a child 

to “notify every other individual who has custody rights to the child” at least 

sixty days prior to the proposed relocation. 23 Pa.C.S.A. § 5337(c)(1), 

(2)(i); (see Father’s Brief, at unnumbered pages 13-14). 

A party’s failure to give notice of relocation is not fatal to that 

relocation. As the trial court stated in its opinion, “the court ‘may consider a 

failure to provide reasonable notice of a proposed relocation . . .’ (emphasis 

added).” (Trial Ct. Op., at 7) (quoting 23 Pa.C.S.A. 5337(j)).6

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6

In a footnote, the trial court then cited the full text of section 5337(j), 

which provides:

(j) Failure to provide reasonable notice.--The court may 

consider a failure to provide reasonable notice of a proposed 

relocation as:

(1) a factor in making a determination regarding the 

relocation;

(2) a factor in determining whether custody rights 

should be modified;

(3) a basis for ordering the return of the child to the 

nonrelocating party if the relocation has occurred 

without reasonable notice;

(Footnote Continued Next Page)
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We also note that Father made no objection to Mother’s relocation at 

the time she moved and, in fact, Father cooperated with her by adjusting 

the place of the transfer of custody by mutual assent. 

We quote the trial court opinion, with approval, where it states, “[t]he 

22 mile move likely does not meet the definition of ‘relocation’ defined as, ‘A 

change in a residence of the child which significantly impairs the ability of 

a non-relocating party to exercise custodial rights.’ 23 Pa. C.S.A. § 5322[a] 

(emphasis added).” (Trial Ct. Op., at 6). Father’s first issue is without 

merit.

In his second issue, Father complains that the trial court “placed far 

too much emphasis on Father’s timeline for filing his complaint for 

custody/formal objection to Mother’s relocation.” (Father’s Brief, at 

unnumbered page 15). He claims, “It is clear the [trial court] penalized 

Father for following the statute, namely by filing within the six month 

jurisdictional deadline. The Uniform Child Custody Jurisdiction and 

Enforcement Act provides that a child’s ‘home state’ is determined by where 

(Footnote Continued) _______________________

(4) sufficient cause to order the party proposing the 

relocation to pay reasonable expenses and counsel 

fees incurred by the party objecting to the 

relocation; and

(5) a ground for contempt and the imposition of 

sanctions against the party proposing the relocation.

23 Pa.C.S.A. 5337(j); (Trial Ct. Op., at 7 n.1).
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the child resided for the past six months consecutively. (23 Pa[.]C.S.A[.] 

5401).” (Id.). Father bases his argument on the provisions of 23 Pa.C.S.A. 

§ 5401 that relate to interstate custody disputes; it does not apply to the 

case at hand. Father’s second issue is without merit.

Our examination of issues three through ten and twelve through 

fourteen of Father’s brief reveals that he has waived those issues on appeal. 

In making his arguments, Father does no more than re-examine the facts of 

this case and ask us to reach a different conclusion. This we may not do. 

See C.R.F., III, supra at 443; (see also Father’s Brief, at unnumbered 

pages 16-33). In addition, Father fails to support his argument by any 

citation to legal authority and makes no effort to link the facts of the case to 

the law. In sum, Father makes no attempt to develop a coherent legal 

argument to support his conclusion that the trial court erred in its 

determinations regarding the custody and relocation of the Children and he 

has, therefore, waived that argument. “The failure to develop an adequate 

argument in an appellate brief may [] result in waiver of the claim under 

Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. 

Super. 2007), appeal denied, 982 A.2d 509 (Pa. 2007) (case citation and 

internal quotation mark omitted). “[A]rguments which are not appropriately 

developed are waived. Arguments not appropriately developed include those 

where the party has failed to cite any authority in support of a contention.” 
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Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations 

omitted). 

Moreover, we have carefully examined the trial court’s findings that 

Father complains of in issues three through ten and twelve through fourteen 

against the record in this matter and we are satisfied that the record 

supports those findings. Therefore, these issues are waived and would lack 

merit. 

In his eleventh issue, Father argues that the trial court erred when it 

did not hold a hearing pursuant to 23 Pa.C.S.A. § 5329 “when it was shown 

that [Mother’s paramour] lied about getting into ARD[.]” (Father’s Brief, at 

unnumbered page 23). In an order entered November 18, 2014, the trial 

court stated, “[U]pon receipt of evidence from counsel for [Mother] that 

[Mother’s paramour] completed the ARD program, the [c]ourt finds that 

neither party nor any member of their household poses a risk of harm to the 

minor child.” (Order, 11/18/14). 

Section 5329 provides:

Where a party seeks any form of custody, the court shall 

consider whether that party or member of that party’s household 

has been convicted of or has pleaded guilty or no contest to any 

of the offenses in this section or an offense in another 

jurisdiction substantially equivalent to any of the offenses in this 

section. The court shall consider such conduct and determine 

that the party does not pose a threat of harm to the child before 

making any order of custody to that parent when considering the 

following offenses: . . . 
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23 Pa.C.S.A. § 5329. A DUI is one of the enumerated “following offenses.” 

The trial court’s order entered November 18, 2014, makes it clear that it 

considered the criminal conduct of Mother’s paramour and determined that 

he does not pose a threat of harm to the Children. Father’s eleventh issue is 

without merit.

Accordingly, we affirm the order of the Court of Common Pleas of 

Lancaster County, entered May 19, 2015, that awarded Mother primary 

physical custody of the Children, awarded Father partial physical custody, 

and granted Mother permission to relocate to Sinking Springs with the 

Children.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/5/2016