J-A12040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.E.W., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

J.S.,

Appellant No. 3279 EDA 2015

Appeal from the Order entered October 6, 2015, 

in the Court of Common Pleas of Montgomery County, 

Civil Division at No(s): No. 2011-30890

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

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 24, 2016

Appellant, J.S. (“Mother”), appeals from the order entered on October 

6, 2015, in the Court of Common Pleas of Montgomery County by Judge Gail 

Weilheimer, denying her petition for modification of the existing custody 

order and her petition for relocation, with respect to Mother’s and Appellee’s, 

M.E.W. (“Father”), children, H.A.W., (born in May of 2004), and K.A.W., 

(born in July 2006) (collectively “the Children”).1 After careful review, we 

affirm.

The trial court set forth the extensive procedural and factual history of 

this case in its opinion accompanying the subject order, which the 

 

* Former Justice specially assigned to the Superior Court.

1

Father has two children from a previous marriage, T.W. and A.W. N.T., 

9/30/15, at 5. Mother also has two children from a previous marriage, E.C. 

and W.C. N.T., 8/12/15, at 62.
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testimonial and documentary evidence supports. As such, we adopt it 

herein. See Trial Court Opinion, 11/25/15, at 1-3. 

On April 17, 2015, Mother filed a petition to relocate to the State of 

Massachusetts with the Children. On April 2, 2015, Father filed a counteraffidavit regarding the relocation. On August 12, 2015, and September 30, 

2015, the trial court held hearings on Mother’s petition. At the hearings, 

Dr. Colin Broom, Chief Executive Officer of Nabriva Therapeutics; Pamela 

King, head of business development for Hereditary Angioedema Association; 

Mother; Karleen Novotny, an in-class aid and Library Assistant at Coventry 

Christian School; P.C., a friend of Mother and Father; J.G., Father’s nanny; 

A.H., Children’s maternal grandmother (“Maternal Grandmother”); and 

Father testified. On October 6, 2015, the trial court denied Mother’s petition 

to modify custody and request to relocate to the State of Massachusetts. If 

Mother decided not to move to the State of Massachusetts, the order further 

stated Mother and Father would continue to share legal and physical custody 

of the Children. 

On October 29, 2015, Mother timely filed a notice of appeal and a 

concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b). The trial 

court filed a Rule 1925(a) opinion on November 25, 2015.

On appeal, Mother presents the following issues for our review:

1. Whether the trial court abused its discretion and committed an 

error of law when it misapplied the child custody and relocation 
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laws by using a “substantial change in circumstances” standard, 

reaching a manifestly unreasonable result that is not supported by 

competent evidence? 

2. Whether the trial court abused its discretion and committed an 

error of law when it failed to consider all custody factors and before 

deciding the issues of relocation?

3. Whether the trial court abused its discretion and committed an 

error of law in denying Mother’s request to relocate with Children?

4. Whether the trial court abused its discretion and committed an 

error of law when it failed to consider all of the evidence and 

contradictory testimony?2

Mother’s Brief at 6.

Our scope and standard of review in custody matters are 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.

With any child custody case, the paramount concern is the best 

interests of the child. This standard requires a case-by-case 

assessment of all the factors that may legitimately affect the 

physical, intellectual, moral and spiritual well-being of the child.

 

2

In her brief, Mother’s last issue on appeal is combined with her third issue 

on appeal. Therefore, we do not need to address separately Mother’s last 

claim. 
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M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013), quoting J.R.M. v. 

J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011).

The primary concern in any custody case is the best interest of the 

child. The best-interest 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). 

Section 5337 applies to relocation requests, and provides as follows, in

relevant part:

(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.

(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.
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(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). 

In addition, the trial court in this case was required to consider the 

best interest factors set forth in section 5328, 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 
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which party can better provide adequate physical 

safeguards and supervision of the child

(2.1) The information set forth in section 5329.1(a) (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.

(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.
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(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).

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

that relocation will serve Child’s best interest as set forth under Section 

5337(h). See 23 Pa.C.S. § 5337(i)(1). Furthermore, “[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). 

In her first issue, Mother argues that the trial court abused its 

discretion when it misapplied the child custody and relocation laws by using 

a “substantial change in circumstances” standard. Mother’s Brief at 11. In 

this case, the trial court correctly recognized “the standard for review in the 

child custody matters is the ‘best interests and welfare of the children[,]’” 

Trial Court Opinion, 11/25/16, at 6, and it applied that standard in the case 

sub judice. Notably, Mother fails to indicate in her brief where in the record 

the court’s alleged application of an inappropriate standard is manifest. 

Therefore, the trial court did not abuse its discretion. See M.J.M., 63 A.3d 

at 334.
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In her second claim, Mother avers that the trial court abused its 

discretion and committed an error of law when it failed to consider all child 

custody factors and relocation factors before deciding the issue of relocation. 

Mother’s Brief at 6. At the relocation hearing on September 30, 2015, the 

trial court listed and discussed all section 5328(a) best interest factors and 

section 5337(h) relocation factors. See N.T., 9/30/15, at 137-149. After 

the hearing, the trial court provided a written decision in which it listed all 

sixteen factors and analyzed those factors based on the evidence presented 

by the parties. See Trial Court Opinion, 11/25/15, at 8-16. Therefore, 

Mother’s claim is without merit. 

In Mother’s third question presented on appeal, she raises two 

separate issues concerning both the 5328(a) best interest factors and 

section 5337(h) relocation factors. Mother argues that the trial court abused 

its discretion in denying Mother’s petition to relocate and failing to consider 

all of the evidence and contradictory testimony. Mother’s Brief at 6. In her 

brief, Mother argues the trial court’s finding that the parents’ have a history 

of co-parenting effectively and that they are equally involved in academic 

and extracurricular activities is not supported by the record.3 Id. at 12. 

Mother also argues in her brief that the record does not support the trial 

court’s findings as to section 5337(h)(1), the nature, quality, extent of 

 

3 We note that, although Mother does not provide citation to the relevant 

statute, this factor is relevant to relocation, pursuant to 23 Pa.C.S.A. § 

5328(a)(3).
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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; section 5337(h)(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; 5337(h)(4), the child’s preference, taking into 

consideration the age and maturity of the child; and 5337(h)(8), the reasons 

and motivation of each party for seeking or opposing the relocation. Id. at 

16-23.

As to section 5328(a)(3), Mother avers that “Father’s involvement in 

the academic extracurricular activities of the children is ‘peripheral.’” Id. at 

14. 

The trial court explained 

Mother and Father have a history of good co-parenting despite 

any personal issues that have occasionally arisen between them; 

their involvement in the children’s academic and extra-curricular 

life appears to be evenly split. Each parent has an equally 

demanding career and needs to use third parties to care for the 

[C]hildren. Accordingly, both parties provide for childcare when 

unavailable to directly supervise the [C]hildren during their 

custody period. With that, the [trial c]ourt concluded to allow 

Mother to relocate and modify custody would ultimately interrupt 

the parties’ ability to successfully co-parent[.]

Trial Court Opinion, 11/25/15, at 8.

Mother’s issue on appeal seeks review of the trial court’s finding of fact 

and credibility determinations. Our standard of review does not permit this 

Court to re-find facts, re-weigh evidence, or impeach the credibility 
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determinations of the trial court. We may only reject the trial court’s 

conclusions if they involved an error of law or are unreasonable in light of 

the sustainable findings of the trial court. See M.J.M., 63 A.3d at 334. We 

find no abuse of discretion. 

In the second issue raised in Mother’s third question presented, Mother 

argues that the trial court’s finding, as to section 5337(h)(1), is not 

supported by the testimony. Specifically, Mother argues the trial court erred 

in concluding, “the Children would continue having similar contact and 

communication with half-siblings and extended family whether relocation 

and modification were granted or denied.” Mother’s Brief at 16. Mother also 

avers that the trial court erred, as to section 5337(h)(3), in concluding “the 

proposed relocation would have a ‘substantial’ effect on the [C]hildren’s 

relationship with Father.” Mother’s Brief, at 18. With regard to section 

5337(h)(4), Mother argues that the trial court erred in not considering the 

Children’s preferences. Mother’s Brief at 22. As to section 5337(h)(8), the 

reasons and motivation of each party for seeking or opposing the relocation, 

Mother contends that there was an “abundance of testimony” that showed 

“any alternative to relocation would not be possible or feasible.” Mother’s 

Brief at 18. 

The trial court, applying section 5337(h)(1), found that “[the Children] 

would continue having similar contact and communication with half-siblings 

and extended family whether relocation and modification were granted or 
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denied.” Trial Court Opinion, 11/25/15, at 9. The trial court noted that the 

Children’s half-siblings, with the exception of E.C., are “living outside of the 

parties’ respective residences.” Id. Father’s children from his previous 

marriage, A.W. and T.W., live in the State of Oklahoma and the State of 

Texas, and the Children’s paternal grandparents live in the State of Idaho. 

N.T., 9/30/15, at 5-6. Moreover, Mother’s children from her previous 

marriage attend and will be attending colleges in Philadelphia, Pennsylvania 

and Collegeville, Pennsylvania. N.T., 8/12/15, at 62. Maternal Grandmother 

lives in Ontario, Canada. N.T., 9/30/15, at 116.

As to section 5337(h)(3), the trial court found:

[T]he proposed relocation is at least six (6) hours away and 

would have a substantial effect on the [C]hildren’s relationship 

with Father. This relocation would displace the 50/50 custody 

arrangement that has successfully been in place since the 

parties’ separation over three years ago. Further, it would be 

practically impossible for Father to continue his involvement, as 

it stands, in the [C]hildren’s lives if relocation were granted to 

Mother, regardless if the parties shared traveling time. The 

[C]hildren’s best interests are also not served through constant 

travel between their parents’ homes, either by air or road, as it 

would ultimately detract from their academics, extracurricular, 

recreation, and time with the respective custodial parent.

Trial Court Opinion, 11/25/15, at 10 (citations omitted). 

The trial court, applying section 5337(a)(4), found:

I did not hear from the [C]hildren, and I did tell counsel at our 

pretrial conference that I would not permit the [C]hildren to 

testify regarding their preferences because this is not a decision 

for children to make, and I didn’t want them to feel that burden 

in any way; so that was intentionally excluded from the [trial 

c]ourt’s consideration.
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N.T., 9/30/15, at 141-42.

As to section 5337(h)(8), the trial court stated,

while Mother’s reason for relocation is in good faith and due to 

the business decisions of her employer, the ultimate detriment 

to the [C]hildren outweighed Mother’s motivations. The 

[C]hildren and/or parties would be forced to travel resulting in 

significant lost time with Father and disintegration of his close 

relationship with the [C]hildren, established during the marriage 

and through the 50/50 custody arrangement. 

Trial Court Opinion, 11/25/1, at 11 (citations omitted). The trial court 

further found evidence of an alternative to Mother’s relocation including: 

(i) Flexible work arrangements have existed and/or do exist for 

top employees in Mother’s field according to Dr. Colin Broom, 

witness for Mother. 

(ii) The [trial c]ourt found Mother is a top employee[.]

(iii) Pam King, Head of Business Development for the HAE 

Association, described the long process of developing expertise 

in various fields of clinical drug research including the position 

Mother currently holds. Ms. King’s testimony also suggested, in 

her opinion, Shire would be motivated in retaining Mother 

because of her expertise and time within the company. 

(iv) Mother discussed already traveling to Massachusetts for 

work at the August 12, 2015 hearing, specifically mentioning 

Shire was “hot on [video teleconferencing] as well as 

teleconferences[.]” Furthermore, she admitted she has not 

asked Shire for any exceptions for remote working, e.g., 

telecommunication, as Shire would not give a decision until a 

final outcome in the present matter was reached.

(v) Dr. Broom testified Mother could transfer to another 

company with similar title and/or job function, despite his belief 

it is more difficult in the Philadelphia region than other areas of 

the country. 

(vi) Although the [trial c]ourt found a financial benefit to Mother 

if relocation was granted, Mother clearly stated she is “not a 
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money person." Thus, the [trial c]ourt’s consideration of any of 

Mother’s financial motivations for relocating is given less weight 

in its analysis of factor (8).

(vii) Finally, Mother portrayed a pattern of “five-year stints” in 

describing her work history in previous disease and drug 

research and early clinician experience. In other words, Mother 

has accepted new employment about every five years. This 

testimony suggested to the [trial c]ourt Mother will be able to 

find new employment, prevent the need for relocation, and/or 

has not diligently searched for other employment as an 

alternative to relocation.

Trial Court Opinion, 11/25/15, at 11-12 (citations omitted). 

Moreover, the trial court found that Father “demonstrated sound 

financial reasoning for ultimately opposing relocation.” Id. at 13. Father is 

a podiatrist and his practice is located in Newport, Pennsylvania. N.T., 

9/30/15, at 7. When Mother expressed her initial need to move to Boston, 

Massachusetts, Father traveled to Boston, Massachusetts to inquire what 

would be involved in relocating his practice to Boston. Id. at 43. Father 

also spoke to a friend who practices podiatry in the suburbs of Boston. Id. 

Based on his inquires, Father concluded that moving his practice to Boston 

“was not in [his] best interest financially.” Id. at 44. The trial court found 

Father’s testimony to be credible, and that he “seriously considered 

uprooting his practice to accommodate relocation despite his personal 

preference.” Trial Court Opinion, 11/25/15, at 13. 

Ultimately, the trial court found:

Mother was unable to demonstrate modification and relocation 

would be in the [C]hildren’s best interests, e.g., enhancement to 

their lives per the relevant law or feasibility of a new custody 
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arrangement to preserve the [C]hildren’s close relationship with 

Father. Alternatively, Mother failed to show benefits to the 

[C]hildren would outweigh the detriment of losing their close 

relationship with Father as it has always existed. The issue of 

modification arose solely from Mother’s desire to relocate and 

meet the needs of her employer. Mother has not convinced the 

[trial c]ourt, while relocation is clearly beneficial to her, it is in 

the children’s best interests.

Trial Court Opinion, 11/25/15, at 7. The trial court, in weighing the sum of 

the factors relevant to both section 5328 and section 5337, did not abuse its 

discretion in concluding that the Children’s best interests weigh in favor of 

maintaining their current custody arrangement, and it did not abuse its 

discretion in denying Mother’s request for relocation.

After review of the trial court’s orders, opinion, and the certified 

record, we conclude that the trial court’s findings are supported by 

competent evidence in the record and its conclusions are reasonable in light 

of the sustainable findings of the trial court. See M.J.M., 63 A.3d at 334. 

As such, we discern no abuse of discretion in the trial court’s ultimate 

conclusion.

Accordingly, for the foregoing reasons, we affirm the trial court’s order 

denying Mother’s petition to modify custody and Mother’s petition for 

relocation, pursuant to 23 Pa.C.S.A. § 5337(h).

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/24/2016