J-A07023-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.G. 

Appellant

v.

B.N.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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-yearold 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 
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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 coparenting 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:

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1 Such stipulation provided for multiple exchanges each day in order to 

maximize Father’s time with Child when Mother was working and vice versa.

2 Father 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 

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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