J-S12001-23

2023 PA Super 102

ADRIAN WHITE

v.

CHRISTINE MALECKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1548 MDA 2022

Appeal from the Order Entered October 26, 2022,

in the Court of Common Pleas of Luzerne County,

Civil Division at No(s): 1851 of 2022.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

OPINION BY KUNSELMAN, J.: JUNE 9, 2023

Christine Malecki (Mother) appeals the decision of the Luzerne County 

Court of Common Pleas to award Adrian White (Father) primary physical 

custody of their 6-year-old son A.C.W. (the Child), pursuant to the Child 

Custody Act. See 23 Pa.C.S.A. §§ 5328(a), 5337(h). Father requested that

the Child move from Mother’s home in Pennsylvania to Father’s home in 

Germany. On appeal, Mother challenges the trial court’s substantive custody 

award, as well as a specific provision of the order, which made her responsible 

for the cost of transporting the Child between residences. After careful review, 

we affirm the trial court’s custody award, but we vacate the provision 

regarding the transportation costs and remand with instruction.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The record discloses the following factual and procedural history: The 

parties married in August 2016, and the Child was born in September 2016. 

In mid-2018, the family (including the Child’s two half-siblings1 and Paternal 

Grandmother) moved to Germany, where Father began employment as a 

logistics management specialist with the Department of Defense and where 

he was stationed with the Army Reserves.

A little over week after arriving in Germany, Mother became gravely ill.

Mother spent weeks in various hospitals, where she was treated for

pneumonia, sepsis, cardiac arrest, and multiple organ failure. At one point, 

Mother was put on a ventilator and into a medically induced coma. After 

Mother came out of the coma, Mother learned she had “four strokes, a few 

mini strokes behind her eyes, and an aneurysm.” See N.T., 8/31/22, (Day 1) 

at 175. One of her feet became gangrene, requiring a below-the-knee leg 

amputation. In September 2018, Mother was transferred to Walter Reed 

hospital in the United States to continue treatment. She returned to Germany

around May 2019.

The parties’ relationship deteriorated over the next several months. In 

December 2019, Mother wanted to return to the United States. Mother said 

____________________________________________

1 Each parent had a child from a previous relationship. The Child’s siblings 

are not involved in this matter.
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she was dissatisfied with the level of care she was receiving in Germany.2 

Father testified that he was unaware of Mother’s intentions until she 

announced her decision. At some point between December 2019 and February 

2020, Mother, the Child, and the maternal half-sibling, moved back to the 

United States; Father, the paternal half-sibling, and Paternal Grandmother

remained in Germany.

Over the next two years, the parties operated without a formal custody 

order. Father primarily lived in Germany, but he communicated regularly with 

the Child and visited him when he traveled back to the United States. During 

this time, Mother was the primary caretaker, assisted by Maternal 

Grandmother. Eventually, the parties decided to end their marriage.3

Father petitioned for primary custody in February 2022 and filed a notice 

of proposed relocation.4 The trial court held a custody hearing on August 31 

and September 19, 2022. On October 26, 2022, the trial court granted 

____________________________________________

2 Mother testified that she wanted to return to Walter Reed so she could get 

fitted for a prosthetic leg, which she had been unable to receive in Germany 

for over nine months. See N.T., 9/19/22 (Day 2) at 51.

3 The parties’ divorce complaint was pending at the time of the custody 

hearing. Mother alleges that the date of separation was December 2019. The 

complaint itself was not filed until 2022.

4 Evidently, Father’s complaint for primary custody was held or dismissed 

without prejudice, as evidenced by the fact that it was reinstated in April 2022. 

We note that the parties followed the relocation procedure identified in 23 

Pa.C.S.A. § 5337. Because this case does not involve relocating parties, strict 

adherence to the relocation procedure, though perhaps prudent, was 

ultimately superfluous. See D.K. v. S.K., 102 A.3d 467 (Pa. Super. 2014) 

(discussed infra).
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Father’s request for relocation and awarded him primary custody of the Child. 

The trial court delineated its reasons for the award contemporaneously with 

the custody order. Mother timely filed this appeal. She presents four issues 

for our review:

1. Did the trial court abuse its discretion and err as a 

matter of law in granted Father’s request for primary 

custody when the application of factors enumerated in 

23 Pa.C.S.A. § 5328(a) weighed in favor of Mother?

2. Did the trial court abuse its discretion and err as a 

matter of law in granting Father’s request for 

relocation when the application of the factors 

enumerated in 23 Pa.C.S.A. § 5337(h) did not 

establish relocation was in the best interest of the 

Child?

3. Did the trial court abuse its discretion and err as a 

matter of law in granting Father’s request for 

relocation when he failed to demonstrate that 

relocation would be in the Child’s best interest?

4. Did the trial court abuse its discretion and err as a 

matter of law when it essentially granted Father sole 

physical custody by requiring Mother to pay the costs 

of transportation?

Mother’s Brief at 4 (cleaned up).

The relevant scope and standard of review governing these claims 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 
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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.

D.K. v. S.K., 102 A.3d 467, 478 (Pa. Super. 2014) (citation omitted).

The Child Custody Act contains two sets of factors the trial court must 

consider, depending on the type of action. See 23 Pa.C.S.A. § 5328(a)(1)-

(16); see also 23 Pa.C.S.A. § 5337(h). Section 5328(a) provides: “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 [factors 1 through 

16.]” Id. Separately, Section 5337(h) enumerates ten factors a court must 

consider in determining whether to grant a proposed relocation (again giving 

weighted consideration to those factors which affect safety).

 When the Legislature enacted Section 5337 to address relocation, it 

anticipated there would be a “relocating party” and a “non-relocating party.” 

D.K., 102 A.3d at 472. However, the relocation provisions set forth in Section 

5337 do not apply when “both parents have lived in their current residences 

for some time, and neither parent is moving." Id. at 473. We held that in 

such a situation – where neither parent is seeking to relocate, and only the 

child would be moving to a significantly distant location – trial courts “should 

still consider the relevant factors of Section 5337(h) in their Section 5328(a) 

best interest analysis.” Id. at 477-478. To put a finer point on it, Section 
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5328(a)(16) (“any other relevant factor”) ropes in the Section 5337(h) 

factors; the Section 5337(h) factors are per se relevant to the Section 5328(a) 

best interest analysis. 

Although the case before us is technically not a relocation case – as 

Father has resided in Germany for some time – the parties and the trial court 

correctly understood that consideration of both sets of factors, under Section 

5328(a) and Section 5337(h) was required. 

In her first and second appellate issues, Mother challenges the trial 

court’s respective analyses under Sections 5328(a) and 5537(h). We address 

Mother’s claims contemporaneously. The trial court delineated its reasons for 

the award when it issued its October 26, 2022 custody order. See 23 

Pa.C.S.A. 5323(d). The trial court explained its findings under each factor 

listed in Sections 5328(a) and 5337(h), as well as the weight it afforded to 

those factors. See Order of Court, 10/16/22, at 7-19. On balance, most of

the factors weighed in favor of Father. The court determined that Father was 

the parent more likely to encourage and permit contact with the other parent; 

that Father can better address the Child’s need for stability; that he is the 

parent better suited to attend to the Child’s daily needs; that Father is more 

willing to cooperate with Mother than vice versa; that moving to Germany 

would have a more positive impact on the Child than if the Child remained in 

the United States. See generally id.

Despite its determination that most factors favored Father, the trial 

court rightly understood that a custody analysis is not a scorecard. In its 
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Pa.R.A.P. 1925(a) opinion, the trial court explained that the motivating force 

behind its decision was its concern that the Child fell behind academically while 

in Mother’s primary care. The Child had struggled with reading and had to 

repeat kindergarten. The school instituted a “504 plan” to support the Child. 

The trial court explained why it agreed with Father’s position that the Child 

would do better in his care:

The court finds credible Father’s testimony that the Child 

spends an inordinate amount of time on the computer and 

watching YouTube videos when in Mother’s care. He will 

also be able to provide the Child with opportunities to travel 

countries in Europe and to have opportunities not available 

to him presently. The Child will be able to be part of a 

program before and after school which will provide extra 

homework care, sports activities, as well as music, literary 

arts and sports. 

Father has shown a great interest in his children’s progress 

in school, while Mother has not tracked what has been 

happening in the Child’s education.

Father plans on having the Child playing sports and getting 

him involved in team activities, while Mother has not been 

able to plan organized activities like soccer and basketball.

[...]

In summary the Child’s emotional and physical health will 

be greatly enhanced with Father as primary custodian. In 

addition, the Child’s educational development will without a 

doubt be greatly improved.

Trial Court Opinion, 12/2/22 (T.C.O.), at 10-11; 12 (citation to the record 

omitted).

On appeal, Mother’s presents a litany of examples from the record as to 

why any given factor should have been counted in her favor instead of 
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Father’s. See generally Mother’s Brief at 11-19. We need not restate those

examples here; we do not disagree that these reasons could be persuasive. 

But whether Mother’s reasons are persuasive is not our call to make. Mother’s 

appellate argument fails because it does not appreciate our role, nor the 

deferential standard of review that we must employ.

It is not the role of this Court to “re-find facts, re-weigh evidence, and 

re-assess credibility.” Wilson v. Smyers, 285 A.3d 509, 520 (Pa. Super. 

2022) (citation omitted). Our role is simply to review the record in light of 

the trial court’s findings. Our deferential standard of review requires this Court 

to accept the findings of the trial court, so long as those findings are supported

by competent evidence of record. Wilson, 285 A.3d at 515. 

Here, the competent evidence supporting the trial court’s decision was 

primarily Father’s testimony, which was deemed credible by the trial court. 

Mother does not argue that the court’s decision lacked an evidentiary basis. 

The crux of her argument is that the trial court should have found her 

testimony more persuasive than Father’s. This is not cause for us to find error

or an abuse of discretion. The evidentiary record of a custody appeal will often 

support a conclusion different than the one reached by the lower court. That

the trial court could have found for Mother is not a sufficient basis to reverse 

the court’s decision. Deference must be given to the trial court, who viewed 

the parties, the witnesses, and the evidence firsthand. For these reasons, we 

conclude Mother’s first and second appellate issues merit no relief.
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In her third appellate issue, Mother claims the trial court erred when it 

determined that Father met his burden “to establish that an award of primary 

custody and/or relocation was in the minor child’s best interests.” See 

Mother’s Brief at 9, 20. Our review of this claim necessitates that we clarify 

the burden at issue. 

As we explained above, Section 5337 anticipates that one party seeks 

to relocate; when neither party seeks relocation the provisions of Section 5337 

generally do not apply. D.K., 102 A.3d at 472-474. The exception, of course, 

is Section 5337(h). Id. With this in mind, we note that 5337(i) (relating to 

the burden of proof in a relocation matter) is not the precise burden involved 

here.5 Instead, “each parent shares the burden of proving, by a 

preponderance of the evidence, that an award of custody to him or her would 

serve the best interests of the Child.” Graves v. Graves, 265 A.3d 688, 698 

(Pa. Super. 2021). 

____________________________________________

5 Section 5337(i) provides:

(1) The party proposing the relocation has the burden of 

establishing that the relocation will serve the best 

interest of the child as shown under the factors set 

forth in subsection (h).

(2) Each 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.A. § 5337(i).
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However, in the type of case at issue here – where only the child stands 

to move a significant distance – the burden each parent shoulders is 

substantially similar to that of Section 5337(i). Put another way, Father

requested primary custody so the Child could move from Mother’s home in the 

United States to his home in Germany; thus, Father had the burden to prove 

that the move would be in the Child’s best interest. Mother, by contrast, had 

the burden of proving that an award in her favor – not Father’s – was in the 

Child’s interest.

Having clarified the burden, we return to Mother’s substantive 

argument. She claims that Father failed to present any evidence to support a 

change from the status quo. See Mother’s Brief at 23. We disagree. As 

mentioned above, Father provided sufficient testimony about how and why 

the Child’s life would improve if Father had primary custody of the Child in 

Germany. He further testified as to why the continuation of the status quo 

was not in the Child’s best interests. The trial found Father’s testimony to be 

credible and afforded this testimony dispositive weight. In short, the trial 

court properly found that Father had met his burden. Mother’s third claim 

warrants no relief.

In her final appellate issue, Mother claims that the trial court abused its 

discretion by requiring her to pay for the cost for the Child’s transportation. 

Mother explains that she cannot afford to pay for the Child’s international 

travel, as her income is comprised of social security disability resulting from 

her amputation. Because she cannot afford to fly the Child between the United 
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States and Germany to exercise her partial custody, Mother argues that the 

trial court effectively awarded Father sole custody. See Mother’s Brief at 22, 

25.

Our discussion starts by noting the apparent confusion about how the 

transportation costs were allocated. We begin with the plain text of the 

October 26, 2022 custody order. Paragraph 4 of the order provides Mother 

with three separate periods of partial custody each year:

• Spring break (or Spring holiday, or Mother’s Day)

• Summer break (for two months)

• Winter break (or alternatively, Thanksgiving, at 

Mother’s choice).

See Order of Court, 10/16/22, at ¶ 4(a)-(c).

Thus, the trial court’s custody order proposes three international 

roundtrips each year. Paragraph 6 of the custody order designates who is 

responsible for the transportation costs:

Transportation Costs: The immediate costs of 

transportation of A.C.W. to travel to Germany shall be paid 

by Father. Father shall be solely responsible for costs of 

transportation of the child back to Father’s residence at 

winter break. In the alternative, Father shall be solely 

responsible for costs of transportation of the Child back to 

Father’s residence at Thanksgiving break.

Order of Court, 10/16/22, at ¶ 6 (emphasis added).

At the time of the trial court’s custody decision, the Child resided in the 

United States with Mother. Father’s responsibility to cover the “immediate 

costs of transportation” seems to mean that Father had to pay for the Child’s 
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initial flight to Germany to effectuate the formal transfer of custody. No other 

transportation costs could be construed as “immediate,” except the first flight 

following the court’s decision. This raises the question, who is responsible to 

pay for the Child’s annual custody exchanges thereafter. 

Although the provision is silent to Mother’s responsibilities, when read 

in conjunction with Paragraph 4 (Custody Schedule), Paragraph 6

(Transportation Costs) implies that Mother is responsible for all transportation

costs except the annual trip back to Germany following winter break. In other 

words, she would have to pay for: the roundtrip cost to effectuate her custody 

during spring break; the roundtrip cost to effectuate her custody during 

summer break; and the cost of the Child’s flight to the United States to begin

Thanksgiving/winter break. In short, Paragraph 4 makes Mother responsible 

for 5 out of the Child’s 6 journeys.

But when the trial court addressed Mother’s claim in its Rule 1925(a) 

opinion, its reasoning suggested other possible cost allocations. The Rule 

1925(a) opinion states:

The court’s order requires Father to provide transportation 

costs of the Child to Germany and for Thanksgiving and 

winter breaks.[6] Mother has responsibility to pay 

transportation costs to her residence. This is a reasonable 

arrangement. It is clearly not prohibitive and does not 

amount to awarding Father sole physical custody. Mother 

did not present any evidence as to transportation costs 

____________________________________________

6 We clarify that the custody order permits Mother to exercise custody on 

either Thanksgiving or winter break. She is not entitled to both.
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which would impact upon her ability to exercise her 

custodial rights.

T.C.O. at 13 (footnote added) (emphasis added).

This excerpt could be interpreted as: Mother is only responsible for 

Child’s flights to the United States (3 out of the 6 journeys); or, that Mother 

is only responsible for the Child’s flights to the United States in the spring and 

summer, making Father responsible for all the flights to Germany as well as

the roundtrip cost of the Thanksgiving/winter break custody time (this would 

make Mother only responsible for 2 out of the 6 journeys); or, that Father is 

responsible for the flights to and from Germany, but that Mother has to pay 

the cost of transporting the Child between her airport in the United States and 

her residence.7

In his Brief, Father seems to aver that Paragraph 6 made him 

responsible for all the transportation costs: “[T]he trial court made it clear in 

its order that Father would bear the costs of transportation to effectuate 

Mother’s periods of custody with [the Child].” See Father’s Brief at 6.

8

 

Father’s assertion would resolve the question before us. Tempting as it is to 

____________________________________________

7 We note that several airports might be available the parties, which then 

creates still more confusion as certain airports might result in cheaper flights 

for Father, but longer and thus more costly drives for Mother.

8 Notably, all the aforementioned possibilities differ from Father’s original 

proposal. Father testified that he proposed paying for the Child’s roundtrip 

flight to effectuate Mother’s summer custody, but that Mother should be 

responsible for half of the cost for the other custody times. See N.T. (Day 1), 

at 58, 60.
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agree with Father’s averment, we simply cannot overlook the plain and 

unambiguous terms of the October 26, 2022 order. As it stands, Paragraph 

6 makes Mother responsible for all travel except for the flight back to Germany 

following Thanksgiving/winter break. 

The question remains, is such an obligation an abuse of discretion. After 

review, we conclude that it is. In our discussion of Mother’s previous appellate 

issues, we emphasized the nature of our standard of review. Deferential 

though it is, that same standard of review permits this Court to make our own 

inferences and deductions. “Ultimately, the test is whether the trial court's 

conclusions are unreasonable as shown by the evidence of record.” See D.K., 

supra. 

To the trial court’s point, we acknowledge that the record is devoid of 

certain particularities. The parties’ exact incomes are not in the record;9

neither is there any testimony about exact travel expenses. Still, the record

includes some details on these subjects. The record indicates that Mother 

used to work, but that she is now “deemed disabled” following her illness and 

resulting complications. See N.T. (Day 1) at 174. The extent of her disability 

was unclear, although Mother was still receiving treatment at Walter Reed at 

the time of the hearing. She further testified that she was still unable to drive. 

____________________________________________

9

In her Brief, Mother claims that her social security disability payments are 

her only source of income. See Mother’s Brief at 15. That information does 

not appear in the record. Father testified that his income from the Army 

Reserves is in accordance to a pay scale, but did not present an exact figure, 

nor did Father testify what he earns as a civilian employee of the Department 

of Defense.
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See N.T. (Day 2) at 36. As for the cost of international travel, Father testified 

that the price of international flights, though variable, was typically expensive 

– particularly around the holidays (which is when the parties’ custody 

exchanges take place). See N.T. (Day 1) at 88.

Based on this record, the trial court opined that the transportation costs 

imposed onto Mother were not prohibitive. As we are not bound by the court’s 

inferences and deductions, we disagree. The international transportation 

costs unique to this case are extraordinary in comparison to the costs 

associated with interstate custody exchanges, to say nothing of typical 

custody exchanges. Add the fact that parties have dramatically different 

earning capacities. Add that the plain terms of the order require Mother to 

pay for nearly all the Child’s travel. The result is a provision that is manifestly

“unreasonable as shown by the evidence of record.” See D.K., supra.

The trial court carefully crafted Paragraph 4 to achieve a custody 

schedule that would be in the Child’s best interests; as written, the Child would 

not go without seeing Mother for more than three or four months at a time. 

However, the trial court cannot achieve the intended result of its order, if

Mother cannot afford the transportation costs set forth in Paragraph 6. Even 

one forgone opportunity for partial custody undermines the overall custody 

arrangement. Thus, Paragraph 6 constitutes an abuse of discretion, because 

it inhibits Mother’s full compliance with Paragraph 4. The order is at odds with 

itself. 
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For these reasons, we vacate Paragraph 6 of the October 26, 2022 

order, while leaving the remainder of the order in effect. We remand for the 

trial court to reasonably, and clearly, allocate the transportation costs in a 

manner that ensures the parties can effectuate the court’s intended custody 

schedule.

In sum: we discern no error or abuse of discretion with the trial court’s 

application of the factors enumerated in Sections 5328(a) or 5337(h); and we 

further conclude that the trial court properly determined that Father met his 

burden of proof that an award of primary physical custody, in Germany, was 

in the Child’s best interests. However, we conclude that Paragraph 6 in the 

October 22, 2022 order constituted an abuse of discretion. As written, the 

provision obligated Mother to pay for nearly all the Child’s transportation 

costs. The provision was unreasonable as shown by the evidence of record, 

because Mother would be unable to abide by Paragraph 4 of the order without 

undue difficulty.

Order affirmed and part and vacated in part. Case remanded for further 

proceedings consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/09/2023