J-A26002-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.M.B., IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v. J.M.C., Appellant No. 1045 EDA 2013

Appeal from the Order Entered March 15, 2013 In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2012-16775

BEFORE: BOWES, DONOHUE, and OTT, JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2014

J.M.C. (“Father”) appeals from the March 15, 2013 order awarding

A.M.B. (“Mother”) primary physical custody of the parties’ six–year-old

daughter, K.C., and permitting Mother to relocate to Florida. We affirm in

part, reverse in part, and remand.

Mother and Father married on May 25, 2003, and separated during

January 2012. On June 27, 2012, Mother filed a divorce complaint that

included a count seeking primary physical custody of K.C. Father responded

with an answer and counter-claim seeking primary custody. On July 24,

2012, Mother filed a petition for special relief requesting permission to

relocate temporarily to Florida pending her recovery from the birth of her

second daughter by C-section. Mother desired to reside with her parents

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and grandmother in a four-bedroom1 home her parents rented in Parkland,

Florida. While Father contested the relocation, the parties eventually

fashioned a self-styled stipulation for relocation and custody that permitted

Mother to relocate with K.C. to Florida until December 26, 2012. The

stipulation provided, inter alia, that: 1) Mother would have primary physical

custody of K.C. during the relevant period and Father would have liberal

periods of partial physical custody; 2) Father could visit his daughter every

day until she left for Florida on August 19, 2012; 3) Mother would pay for

K.C. to visit Father in Pennsylvania between November 22 and 25, 2012;

and 4) Father would have daily telephone access to his daughter while she

was away. In addition to those parameters of the custody arrangement, the

parties agreed to submit to hair follicle drug testing within three days of the

agreement and exchange the test results. If either party tested positive, the

custody provisions would be revisited to insure K.C.’s safety. The trial court

formally adopted the stipulation as a temporary custody order. In return for

Father’s acquiescence to the temporary relocation, Mother agreed to

withdraw an ex parte protection from abuse (“PFA”) order that had been

entered against Father during June 2012 and a concomitant contempt

petition she filed against Father on August 2, 2012.

____________________________________________

1 Following the temporary relocation, R.B. (“Maternal Grandfather”) constructed a nursery in what was previously the rental property’s living room. N.T., 2/5/13, at 34. Hence, the residence is sometimes described in the notes of testimony as a five-bedroom home. Id.

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Disputes arose almost immediately. Two days after entering the

stipulation, Father filed an emergency petition to modify the custody

arrangement and a simultaneous petition for contempt due to Mother’s

noncompliance. Specifically, Father asserted that Mother interfered with his

visitations on August 14th and 15th, barred him from seeing K.C. during

summer camp on August 15th, and unilaterally decided to embark for Florida

a day earlier than agreed upon. However, following a telephone conference

between the trial court and the respective counsel, both petitions were

dismissed as moot, and the trial court permitted Mother to relocate earlier

than stipulated.

The discord continued after Mother’s departure. On September 21,

2012, Mother filed a contempt petition alleging that Father failed to comply

with the agreed-upon drug-testing, that he disparaged her in front of K.C.,

and that he called his daughter daily.2 Thereafter, on September 27, 2012,

Father countered with an emergency petition for modification and contempt,

____________________________________________

2 While Mother concedes that Father was permitted to maintain daily telephone contact with K.C., she objected to his resolve and his decision to allow paternal grandparents to participate in the conversations. Mother complained, “[the stipulation] does not say [Father] has to [call] nor does it mention his mother or father in the document. [K.C.] has now been upset, not eating dinner and nervous each night between 7[:00] – 8:30 because she knows the phones will start ringing.” See Petition For Civil Contempt, 9/21/12, at 2 (internal parentheses omitted). It is apparent from the certified record that Mother ignores her role in K.C.’s unease and utterly discounts the negative affect created by her reaction to the daily telephone calls and the antics that she and the maternal grandparents employed in an attempt to either monitor or avoid the court-sanctioned communications.

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wherein Father asserted Mother and her family engaged in alienating and

harassing behavior during his so-called “liberal” period of partial physical

custody that he was entitled to enjoy with K.C. in Florida. For example, he

contended that Mother imposed contrived conditions upon his periods of

physical custody, such as supervision by her family members. In addition,

he highlighted that over the first forty days that K.C. was in Florida, Mother

prevented him from accessing her by telephone approximately twenty-five

percent of the time. The trial court did not deem the parties’ countervailing

allegations that the other was flouting the stipulation to be an emergency,

and it directed the court administrator to schedule hearings in due course.

Accordingly, nothing changed and the discord continued unimpeded.

On November 19, 2012, Father filed yet another petition for contempt

due to Mother’s noncompliance. That petition reasserted that Mother was

engaging in inappropriate and alienating behavior and specifically

complained that Mother refused to comply with the component of the

stipulation requiring her to return K.C. to Pennsylvania between

November 22 and 25, 2012, so the child could visit with Father. On

November 20, 2012, the trial court entered an order directing Mother to

return K.C. to Pennsylvania by November 22, 2012. Thereafter, on

November 29, 2012, the trial court entered a composite order scheduling a

three-day hearing commencing on February 4, 2013, to address all of the

outstanding petitions in the custody matter and the parallel child support

litigation that is not part of this appeal. In addition, that order awarded

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Father two periods of overnight physical custody with K.C. during December

2012.

Meanwhile, at some unidentified point prior to November 13, 2012,

Mother issued notice pursuant to 23 Pa.C.S. § 5337(c) of her proposed

permanent relocation to Florida.3 Father responded by filing a timely

counter–affidavit regarding relocation wherein he objected to the permanent

relocation and requested a hearing to address relocation and primary

custody. That request was consolidated with the matters to be addressed at

the February 2013 hearing.

Next, on December 5, 2012, Father filed an emergency petition to

determine physical custody upon Mother’s anticipated return from Florida on

December 26, 2012. Essentially, Father requested the court confirm that

the parties would share joint legal custody and equal physical custody of

K.C. and Mother’s newborn daughter to the extent that Father was

determined to be a birth parent. That petition was also consolidated with

the other outstanding matters.

Mother and K.C. returned to Pennsylvania as agreed. However, on

January 3, 2013, Father filed an emergency petition seeking to prevent

Mother from returning to Florida with K.C. Father alleged that he discovered

flight confirmation under Mother and K.C.’s name for a one-way trip to

____________________________________________

3 As the Child Custody Law does not require Mother to file her notice of proposed relocation, it is not included in the certified record.

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Florida that was scheduled to depart at 7:55 a.m. the following day. Father

continued that he was scheduled to have overnight custody of his daughter

that evening, but Mother unilaterally canceled the custodial period without

advising Father of her surreptitiously-booked trip. Father attached the flight

confirmation to the petition as an exhibit. Six days later, the trial court

scheduled a telephone conference on the emergency petition for January 23,

2013. Following the conference, Mother agreed not to take the child to

Florida until further court order.

Two weeks before the consolidated hearing, Father filed an amended

complaint for custody. The three-day evidentiary hearing occurred as

scheduled, and, on March 15, 2013, the trial court entered the above-

referenced order awarding Mother primary physical custody of K.C. and

permitting her to relocate with the child to Florida. The trial court’s

concurrently-filed memorandum reveals that the court considered the

sixteen best-interest factors delineated in 23 Pa.C.S. § 5328(a) to determine

physical custody and reviewed the ten statutory factors that are specific to

relocation cases under 23 Pa.C.S. § 5337(h). Trial Court Opinion, 3/15/13,

at unnumbered 3-13. This timely appeal followed. Father complied with

Pa.R.A.P. (a)(2)(i) and filed a Rule 1925(b) statement asserting three issues

and eleven sub-issues. He reiterates those claims on appeal as follows:

1. Did the trial court err and/or abuse its discretion by failing to apply the relocation factors laid out in 23 Pa.C.S.A. § 5337(h) (1-9) to the facts of record?

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2. Did the trial court err and/or abuse its discretion by giving inappropriate weight and/or undue consideration to Mother’s unemployment as a basis for awarding custody, while at the same time acknowledging Mother’s unemployment was temporary? 3. Did the trial court err and/or abuse its discretion by giving inappropriate weight and/or undue consideration to the testimony of Mother’s chosen child therapist, Dr. Yudell, who opined as a fact witness without relying upon competent evidence of record? 4. Did the trial court err and/or abuse its discretion by assuming the child’s baby sister would remain in Florida if relocation was denied and, as a result, placed improper weight upon Pennsylvania’s preference for keeping siblings together? 5. Did the trial court err and/or abuse its discretion by giving improper weight and undue consideration to Mother’s temporary relocation to Florida in contravention of 23 Pa.C.S.A. § 5337(k)(1)? 6. Did the trial court err and/or abuse its discretion by relying upon the “Primary Caretaker Doctrine”, which was recently abolished by the Pennsylvania Superior Court in the case of MJM v. MLG, 2013 P[A] Super 40 (March 1, 2013)?

Appellant’s brief at 10.4

____________________________________________

4 Father’s brief does not comply with Pa.R.A.P. 2119(a) insofar as the argument is not divided into as many parts as the questions to be argued, and the headings employed in the argument section of the brief do not correspond to the distinct issues that Father identifies in the statement of questions involved. Indeed, Father’s first substantive argument includes ten sub-issues that implicate some, but not all, of the remaining issues that he listed in the statement of questions involved. Moreover, Father levels arguments in his brief that are not identified independently in the statement of questions involved. While vexing, these defects did not foreclose our appellate review. We addressed the merits of Father’s complaints to the best of our ability under the circumstances created by the noncompliant brief.

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We recently reiterated our scope and standard of review of a custody

determination 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.

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)).

Herein, the trial court’s March 15, 2013 custody order awarded Mother

primary physical custody and granted her request to relocate to Florida.

Thus, the court was required to comply with the statutory provisions relating

to “ordering any form of custody” and the section concerning “whether to

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grant a proposed relocation.” See 23 Pa.C.S. §§ 5328(a)5 and 5337(h).6 As

noted supra, the trial court properly considered in its March 15, 2013 opinion

____________________________________________

5 Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best interest requires the examination of the following sixteen factors:

(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. (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.

(Footnote Continued Next Page)

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(Footnote Continued) _______________________

(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. 6 Section 5337 lists ten factors for the court to address in determining whether to grant a proposed relocation:

(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.

(Footnote Continued Next Page)

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both the sixteen best-interest factors enumerated in § 5328(a) and the ten

relocation factors set forth in § 5337(h). Essentially, the trial court

determined that nearly all of the twenty-six factors enumerated in the two

sections militated in favor of awarding Mother primary physical custody and

granting her request to relocate to Florida. The few factors that the court

found did not weigh in Mother’s favor were determined to be either neutral

or inapplicable. The trial court did not adjudge one of the twenty-six factors

in Father’s favor.

Later, in response to Father’s Rule 1925(b) statement, the trial court

issued a Rule 1925(a) opinion that addressed Father’s precise allegations of (Footnote Continued) _______________________

(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).

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error. Specifically, the trial court explained its findings that Mother would

encourage contact between K.C. and Father and provide a more stable

environment. In addition, it elucidated its reliance upon (1) K.C.’s

preference to move to Florida; (2) Mother’s ability to provide childcare until

she finds employment; (3) the primary caretaker doctrine; and (4) opinion

testimony proffered by K.C.’s therapist.

At the outset, we review the challenges Father levels against the trial

court’s award of primary physical custody. These arguments concern issues

two, three, and six in Father’s statement of questions presented.

First, we address Father’s contention that the trial court penalized him

for his work and travel schedule while rewarding Mother for her temporary

unemployment. Specifically, Father assails the trial court’s statement that

Mother’s current unemployment “means that she can care for [K.C.] until

she finds a job.” Father’s brief at 40 (quoting Trial Court Opinion, 3/15/13,

at 7.). Father asserts that the trial court mistakenly premised this

component of the custody determination on Mother’s temporary

unemployment and his traditional work schedule even though he submitted

evidence that his revised schedule involves less travel. Id. Father

essentially challenges the weight of the evidence regarding the court’s

finding regarding the parties’ employment and respective abilities to secure

appropriate child care arrangements. The force of Father’s argument

requests that we re-examine the evidence presented during the three-day

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hearing in a more favorable light in order to attain a different conclusion.

Mindful of our limited standard of review, we decline to revisit the trial

court’s factual findings that are supported by the certified record in order to

reassess the weight of the evidence.

Father’s remaining challenges to the award of physical custody warrant

closer inspection. Those arguments concern the court’s application of the

primary caretaker doctrine and its consideration of a fact witness’s opinion

testimony. We address the court’s application of the primary caretaker

doctrine first.

In reaching its conclusion that awarding Mother primary physical

custody of K.C. was in the child’s best interest, the trial court applied the

primary caretaker doctrine. Father argues that the court’s consideration of

the primary caretaker doctrine was reversible error because, in M.J.M.,

supra, which was decided two weeks before the trial court handed down its

March 15, 2013 decision, this Court recognized that the doctrine no longer

had effect following the 2011 enactment of the Child Custody Law. Mother

counters that, since the evidentiary hearings occurred prior to our decision in

M.J.M., the trial court had discretion to apply that ruling prospectively. The

trial court proffered a similar rationale for invoking the doctrine

notwithstanding M.J.M. While we disagree with the trial court’s legal

position, we find no basis to disturb the court’s award of primary physical

custody herein.

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The primary caretaker doctrine was an extra consideration that applied

in limited instances where a trial court deemed both parents equally fit to act

as the primary custodian. See M.J.M., supra. In M.J.M., we explained

that the precedential underpinnings of the judicially-created precept have

been eroded by the subsequent enactment of the sixteen specific best-

interest considerations enumerated in the new custody law. Id. at 338-339.

Specifically, we observed,

If the Pennsylvania Legislature intended for extra consideration be given to one parent because of his or her role as the primary caretaker, it would have included language to that effect. Stated another way, the absence of such language indicates that our Legislature has rejected the notion that in analyzing both parents, additional consideration should be given to one because he or she has been the primary caretaker. . . . .

In short, the Legislature has created a mandatory inquiry to aid trial courts in determining the best interests of the child in a custody dispute. In doing so, it articulated the components of a parent's obligations and characteristics, and a child's needs and welfare, that must be incorporated in the trial court's custody decision where the parents are incapable of doing so on their own. In setting forth these factors, the Legislature has required the trial court to give additional weight only to factors that it finds affect the safety of the child. This language is clear, and we cannot expand it to provide that a trial court must also give weighted consideration to a party's role as primary caretaker. We simply cannot graft the judicially-created primary caretaker doctrine on to the inquiry that the Legislature has established, and so we conclude that the primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker's status, is no longer viable.

Id. (footnote omitted).

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Herein, the parties dispute whether our holding in M.J.M. applies

where, as here, the evidentiary hearing occurred prior to our decision but

the custody determination employing the doctrine occurred two weeks after

this Court recognized that it was no longer required. In In re L.J., __ A.3d

__, 2013 WL 5827281, *11 (Pa. 2013), our Supreme Court reiterated the

general rule that a new rule of law applies retrospectively. The High Court

explained, “the decision announcing a new rule of law is applied retroactively

so that a party whose case is pending on direct appeal is entitled to the

benefit of the changes in the law.” It continued, “In considering whether to

deviate from this general rule, we consider: (1) the purpose of the new rule;

(2) the extent of reliance by courts and litigants upon the old rule, and (3)

the effect the new rule of law will have on the fair administration of justice.”

Id.

While interesting fodder for academic discourse, the question of

retroactive or prospective application of our holding in M.J.M. is irrelevant in

the case sub judice because, even to the extent that the mechanical

application of the primary caretaker doctrine is no longer required, the trial

court was free to consider Mother’s role as K.C.’s primary caretaker in

applying the statutory factors to determine the child’s best interest. “The

considerations embraced by the primary caretaker doctrine have been

woven into the statutory factors, such that they have become part and

parcel of the mandatory inquiry.” M.J.M., supra at 339. Accordingly, in

finding that the statutory factors weighed in favor of awarding Mother

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primary physical custody, the trial court necessarily must have considered

the natural implication of Mother’s role as the primary caretaker of the

party’s six-year-old daughter in applying § 5328(a)(3) (“The parental duties

performed by each party on behalf of the child”); (a)(4) (“The need for

stability and continuity in the child's education, family life and community

life”); and (a)(10) (“Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special needs of the

child”). Moreover, “to the extent the trial court finds it necessary to

explicitly consider one parent's role as the primary caretaker, it is free to do

so under subsection (a)(16).” Id. Thus, assuming arguendo that the trial

court could have declined to apply our holding in M.J.M. retroactively due to

the timing of the evidentiary hearing in this case, the trial court’s

consideration of Mother’s role as the primary caretaker in awarding primary

custody was not reversible error. Hence, Father’s claim fails.

Next, we confront Father’s assertion that the trial court erred in

treating David A. Yudell, Psy.D., as an expert witness and relying upon the

witness’s opinion in reaching it determination. Essentially, he complains that

since Mother expressly declined to offer the witness as an expert during trial,

the witness was never certified as an expert pursuant to Pa.R.E. 702. Father

also complains that Dr. Yudell not only failed to present his opinions within a

degree of reasonable professional certainty, he conceded that since he had

not evaluated both parents and had no knowledge about K.C.’s living

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environment in Pennsylvania, he was not capable of making a custody

recommendation or addressing whether Florida or Pennsylvania would be a

better place for K.C. to reside.

Pennsylvania Rule of Evidence 702 governs the admissibility of expert

testimony. The rule provides:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

Herein, the trial court concluded that Dr. Yudell “was properly qualified

as an expert in the field of childhood psychology and was able to render an

opinion on [K.C.’s] adjustment to Florida.” Rule 1925 Opinion, 5/7/13, at

15. In light of the limited scope of the trial court’s consideration of

Dr. Yudell’s testimony, Mother responds in pertinent part that, since she did

not proffer Dr. Yudell as a custody expert and because Dr. Yudell did not

submit an opinion as to custody or relocation, his testimony regarding K.C.’s

assimilation to Florida was appropriate. We agree.

In the present case, Dr. Yudell testified during voir dire that he was a

licensed clinical psychologist who specialized in all childhood areas, and he

concisely outlined his professional qualifications. N.T., 2/6/13, at 120-121.

After Dr. Yudell explained that he did not normally participate in custody

matters, Mother informed the court that she was not offering the witness as

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an expert. Id. at 122. Instead, she explained that she called Dr. Yudell to

testify about his treatment of K.C. and discuss her adjustment to Florida.

Nevertheless, Mother subsequently sought to introduce a letter wherein

Dr. Yudell opined, “[K.C.] is currently functioning at a high emotional level in

her current living and educational situation and should be allowed the

opportunity to continue this environment”. Exhibit P-27 at unnumbered

page 2. The trial court overruled Father’s objection to the letter. It

reasoned that it was within the court’s province to determine the evidentiary

weight of the letter and that Father could challenge the substance of the

opinion during cross-examination. N.T., 2/6/13, at 128-129.

Following the brief voir dire, Dr. Yudell testified that, after an intake

appointment with Mother on September 27, 2012, he had sessions with K.C.

on October 4 and October 11, 2012. Id. at 124. K.C. also attended sessions

on October 18, 2012, and December 3 and 20, 2012. Id. at 128; Exhibit P-

27. Dr. Yudell detected that K.C. had a potential adjustment disorder and

identified stressors relating to the Florida relocation and the conflict between

Mother and Father. N.T., 2/6/13, at 124, 138. He indicated that K.C. had

transitioned well into her Florida routine, that she performed well in school,

and that she participated in cheerleading, ballet, and gymnastics. Id. at

127. He also noted that K.C. had less outbursts than she experienced

during the fall of 2012. Id. at 128.

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During cross-examination, Dr. Yudell conceded that he never included

Father in any of his sessions with K.C., that Mother presented the nature of

the therapy during the intake session, and that he had completed one

session each with Mother and K.C. before he communicated with Father. Id.

at 130-131. Dr. Yudell also acknowledged that it would be improper to

render an opinion concerning custody without meeting both parents, and he

admitted that the reference to a custody recommendation should be stricken

from the letter that was submitted to the court. Id. at 133. He further

elucidated that he was not proffering an opinion as to the most appropriate

custody scenario or the location that best satisfied K.C.’s needs as much as

simply commenting on the child’s successful transition to Florida. Id. at

134-136.

Even though the trial court mislabeled Dr. Yudell’s testimony as an

expert opinion, in actuality Dr. Yudell testified as a fact witness regarding his

treatment of his patient K.C. He explained his misuse of the term “custody”

in Mother’s exhibit and stressed that he did not attempt to render any

opinions regarding the ultimate issues of custody or relocation. Instead, he

described K.C.’s treatment regimen and opined that she thrived in Florida.

Since Dr. Yudell did not present expert testimony as the term is defined in

Rule 702, we agree that Mother was not required to offer him for

certification as an expert. Hence, Father’s allegation of error must fail.

Since we reject all of Father’s challenges to the propriety of the trial court’s

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award of primary custody to Mother pursuant to § 5328(a), we will not

disturb the court’s custody determination.

Father’s remaining issues contest the sufficiency of the evidence

supporting the trial court’s relocation analysis. Specifically, he assails the

court’s conclusions regarding 1) the level of contact Mother would permit

Father to have with K.C. following relocation; 2) the maternal grandfather’s

sudden last-minute change of heart regarding his utter disdain for Father;

and 3) whether Mother would abandon K.C. in Pennsylvania and return to

Florida if relocation was denied.

First, we address the threshold argument, which Father intersperses

throughout his brief, concerning whether the trial court violated 23 Pa.C.S. §

5337(l) in considering evidence of K.C.’s acclimation to Florida while she

resided in that state pursuant to the temporary relocation stipulation. For

the following reasons, no relief is due. Notwithstanding Father’s

protestations to the contrary, § 5337(l) is not punitive and does not prohibit

a custody court from considering relevant evidence of a child’s best interest

or require the court to view relevant evidence with distrust. In reality, §

5337(l) merely states, “If a party relocates with the child prior to a full

expedited hearing, the court shall not confer any presumption in favor of the

relocation.”

In B.K.M. v. J.A.M., 50 A.3d 168 (Pa.Super. 2012), we confronted the

converse argument that Father raises herein. Specifically, we addressed

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whether a trial court erred in disregarding a mother’s evidence regarding her

children’s activities in Sweden because the mother relocated with the

children prior to the evidentiary hearing. In reversing the trial court, we first

found that the unambiguous language of the statute simply prohibits a trial

court from adopting a prima facie inference in favor of the relocating party

and protects against requiring “the party opposing relocation to bear the

burden of rebutting such an inference.” Id. at 175. Additionally, we

reasoned,

The trial court, in making its ultimate determination, stated that it was bound to disregard this evidence, in order to avoid conferring a presumption in favor of relocation. This interpretation of section 5337(l), however, evinces a misunderstanding of the meaning of the word “presumption,” and acts to convert a statutory provision on the allocation of burdens into what amounts to an extreme sanction on relocations that occur prior to a full expedited hearing. Moreover, by disregarding any evidence arising during the relocation, the trial court, in essence, conferred a presumption against relocation. The plain meaning of section 5337(l) supports neither the sanction enforced by the trial court by its refusal to consider a substantial portion of the record, nor the de facto presumption against relocation. We conclude that the trial court's interpretation of section 5337(l) is, thus, an error of law.

Additionally, our review reveals that the trial court's interpretation of section 5337(l) resulted in a failure to properly consider all factors of section 5328(a) and 5337(h). The court omitted consideration of the parental duties performed in Sweden, of any need for stability and continuity established for the Children during their time in Sweden, and of the overall best interests of the Children, inasmuch as those interests might involve maintaining the status quo established by their life in Sweden over the past two years, which for the most part occurred with Father's agreement. As a result, the trial court failed to apply the necessary factors provided by section 5328(a)

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and 5337(h). See E.D. [v. M.P., 33 A.3d 73, 79-80 (Pa.Super. 2011)].

Id.

Accordingly, we vacated the custody order and remanded the case so

that the trial court could consider evidence of the children’s lives in Sweden,

including their need for stability and continuity in Sweden. Thus, for the

foregoing reasons, Father’s interpretation of § 5337(l) and his standpoint

that the trial court should have disregarded relevant testimony regarding

K.C.’s family, friends, education, and activities in Florida is simply contrary

to our jurisprudence.

Next, we review the court’s finding that “Mother would allow frequent

and continuing contact between [K.C.] and Father[.]” Rule 1925(a) Opinion,

5/7/13, at 7. As discussed infra, the certified record belies this conclusion.7

The record reveals that Mother firmly controlled every aspect of K.C.’s

life, both prior to and following the temporary relocation. Mother dictated

Father’s custodial periods since the parties’ separation and, although she

and Father shared legal custody, Mother made all of the significant decisions

on her daughter’s behalf. For instance, after relocating temporarily to

Florida during August 2012, Mother invoked a provision in the relocation

____________________________________________

7 While Mother’s behavior is also pertinent to the trial court’s consideration of the custody factor outlined in § 5328(a)(1), Father did not challenge that aspect of the court’s custody determination, and we do not address it sua

sponte.

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stipulation that permitted her to render “day-to-day” decisions, to enroll K.C.

in psychological therapy with Dr. Yudell without consulting Father. N.T.,

2/4/13, at 197-199. In addition, notwithstanding the fact that the decision

to pursue psychological counseling is not a mundane day-to-day

determination that Mother was empowered to execute unilaterally, once

Mother elected to inform Father of her decision, she then refused to identify

Dr. Yudell as the attending therapist. Id. at 199-200. Due to Mother’s

obstructions, Father was not able to communicate with Dr. Yudell until

October 11, 2012, after Mother and K.C. had already completed three

sessions collectively. See N.T., 2/5/13, at 245-246; Exhibit P-27.

Additional examples of Mother’s autocratic outlook include her refusal

to provide Father access to relevant medical records and school information.

When Father requested the medical records of Mother’s newborn, whom

Mother identified as Father’s child on the birth certificate, Mother not only

withheld the information, but she advised Father, “Well, you know that both

girls would be better off without you in their life. . . . You have continued to

act like a sperm donor, not a Father. For someone who claims to love [K.C.]

so much, and is so important in your life, you have a very funny way of

showing it.” N.T., 2/4/13, at 225, 247-248. In that comment, Mother’s

animosity toward Father was based upon his admitted uncertainty about the

child’s lineage and Mother’s belief that Father had not paid his child support

obligation. Regardless of the rationale, however, Mother’s actions and

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remarks refute her express position that she does not maintain exclusive

control over her daughters’ lives to Father’s detriment.

Similarly, upon returning to Pennsylvania following the temporary

relocation, Mother, again without consulting Father, refused to withdraw K.C.

from the elementary school that she attended in Florida and enroll her in a

local school. N.T., 2/4/13, at 257. Instead, Mother employed a satellite

program where K.C. was taught the Florida school’s curriculum via

computer. N.T., 2/6/13, at 100-101. Consistent with Mother’s antics

throughout the custody proceedings, she rebuffed Father’s attempts to

obtain K.C.’s school information, providing only a report card around

Thanksgiving, and she failed to give Father the information that he

requested in order to access his daughter’s curriculum online. N.T., 2/5/13,

at 257-258. To make matters worse, while Mother initially claimed that a

“magical code” that Father could use to access the information did not exist,

after letting slip that she has, in fact, accessed K.C.’s curriculum via

computer and noted that she employed the access information regularly, she

finally admitted to the code’s existence, but claimed that she could not recall

it. N.T., 2/4/13, at 261; N.T., 2/6/13, at 101-105. Rather than view

Mother’s evasiveness as additional evidence that she would not promote

Father’s relationship with their daughter following relocation, the trial court

merely directed Mother to provide the information to Father at her earliest

convenience. N.T., 2/6/13, at 105.

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Herein, an established pattern of alienating behavior exists that

demonstrates Mother’s attempts to thwart Father’s relationship with K.C.

The record is replete with examples of Mother’s interference with Father’s

ability to exercise his custodial rights or contact K.C. on the telephone. For

example, prior to the temporary relocation, Mother proscribed Father from

taking K.C. to his apartment in Philadelphia and she threatened to call the

police if Father removed his daughter from the local community. N.T.,

2/6/13, at 269-270. Likewise, having previously agreed to permit Father to

take K.C. to dinner so that they could celebrate his birthday together,

Mother subsequently rescinded her permission after Father spurned her

command to return the child by 7:00 p.m., and she refused to allow K.C. to

attend the celebration. N.T., 2/5/13, at 236. On a separate occasion prior

to the temporary relocation, Mother employed the then-inoperative PFA

order to interfere with Father’s visit with K.C. during an art exhibit at

summer camp. Id. at 234-236. Mother’s interference not only exemplified

her acidulous responses to Father’s desires, but it also contradicted her

express promise to permit Father access to K.C. every day prior to the date

she left for Florida. Id. at 234.

Moreover, as early as Father’s first trip to Florida to exercise physical

custody of K.C. following the temporary relocation, Mother subjected his

“liberal” custodial period to supervision by her sister, and employed other

artificial restrictions in response to her continued outrage over Father

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videotaping her removing items from the marital home during the move.

N.T., 2/4/13, at 227, 228-229; N.T., 2/5/13, at 238; Exhibit R-13.

Furthermore, without any basis in law or authority under the custody

stipulation, Mother unilaterally refused Father overnight custody of his

daughter for two months in Florida until she was satisfied with Father’s

accommodations. N.T., 2/4/13, at 203-207, 219, 227, 230. While no order

existed that prevented, restricted, or conditioned his right to exercise

custody overnight, Father acquiesced to Mother’s demands in order to

appease her. N.T., 2/5/13, at 239. His attempts to placate Mother were

unsuccessful, however, and she forbade Father from taking K.C. to his hotel

room temporarily unless she was first advised of the room’s location. N.T.,

2/4/13, at 243. Nonetheless, having barred K.C. from Father’s hotel room,

she chastised Father for returning K.C. early because the child was

exhausted and Father had no place other than his room for her to rest. Id.

at 242-243.

Mother was so obsessed with Father’s weekend accommodations that

she would berate Father over the issue even when he did not seek to

exercise overnight custody. N.T., 2/5/13, at 239, 246-247. One incident,

which occurred in K.C.’s presence in the course of a would-be custody

exchange at the Broward County Sherriff’s Office, erupted into a complete

fiasco wherein Mother, again acting without any express authority, halted

Father’s custodial period before it started. Id. at 249. Frustrated by

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Father’s unwillingness to disclose the location of his weekend lodging even

though it was not pertinent to his custodial period, Mother simply removed

K.C. from Father’s car, secured her in Maternal Grandfather’s vehicle, and

terminated the exchange. Id. at 249. Father, who had flown from

Pennsylvania to spend the day with his daughter, was precluded from

exercising custody during that weekend. Id. Mother eventually permitted

Father to see K.C. briefly over breakfast the following day. Id. Considering

airfare, car rental, and the hotel stay, Father wasted approximately $1,500

that weekend due to Mother’s behavior. Id. at 250.

As it relates to Mother’s telephone mischief, on ten consecutive

evenings beginning in late September of 2012, Mother refused Father

telephone access to K.C. even though that contact was directed by court

order. N.T., 2/4/13, at 230-231, 241-242; N.T., 2/5/13, at 242-244; Exhibit

R-6. In fact, the household refused to answer telephone calls that Father

attempted to return immediately after he missed calls from Mother’s Florida

residence. N.T., 2/5/13, at 242. When Father and his family were able to

speak with K.C. on the telephone, their conversations were monitored by

Mother and the maternal grandparents, and the adults prompted the child’s

responses. Id. at 146.

Having summarized Mother’s officious conduct, we next observe that

the trial court legitimized what it styled as Mother’s “periods of

uncooperativeness” based upon the issuance of the prior temporary PFA

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order, Mother’s concern regarding Father’s accurate observation that he was

not subject to her directives, and his refusal to provide Mother an itinerary

during his custodial periods. See Trial Court Opinion, 3/15/13, at 11; Rule

1925(a) Opinion, 5/7/13, at 6-7. Essentially, the trial court found that

Mother’s concerns were valid and trumped Father’s right to exercise the

liberal periods of partial physical custody that he bargained for in the

temporary relocation agreement. For the following reasons, we disagree.

Pursuant to the stipulation permitting the temporary relocation,

“Father shall have liberal periods of partial physical custody [of K.C.] in

Florida.” See Stipulation for Relocation and Custody, 8/13/12, at 1.

However, throughout both of the trial court’s opinions, the court

characterized Father’s custodial rights as visitation. In reality, our

jurisprudence no longer recognizes the term visitation to describe periods of

partial physical custody, shared physical custody, or supervised physical

custody. See 23 Pa.C.S. § 5322(b). Instead, the Child Custody Law defines

physical custody as “The actual physical possession and control of a child.”

23 Pa.C.S. § 5322(a). In tandem, partial physical custody, which Father was

entitled to exercise herein, is defined as “The right to assume physical

custody of the child for less than a majority of the time.” Thus, unlike the

former category of visitation, which did not include the right to remove a

child from the custodial parent’s control, the exercise of partial physical

custody subsumes a right of possession and control of the child and that

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right is not subject to the dictates of the parent with primary custody. The

trial court’s characterization of Father’s custody rights simply ignores this

nuance.

As noted, Father was entitled to exercise partial physical custody.

Consequently, Father’s custodial rights were not inferior to Mother’s or

subject to her whims in any manner. The only limitation upon Father’s

physical custody of K.C. was that it was for less than the majority of the

time. Nevertheless, consistent with its mischaracterization of Father’s rights

as visitation, the trial court accorded Mother complete deference in

defending her decisions to erect impediments to limit, restrict, and condition

Father’s ability to exercise his custodial rights.

Thus, even to the extent that Father declined to provide Mother

information sufficient to ease her concerns regarding the expected itinerary

and accommodations during his custodial period, Father’s refusal was not

grounds for Mother to unilaterally deny Father access to his daughter.

Father explained to Mother that he declined to inform her of the location of

his hotel because he feared retribution from her Florida relatives who had

threatened his life in the past. N.T., 2/4/13, at 247. It is clear that Mother

and the trial court both disregarded Father’s concerns. We highlight

however, that if Mother was dissatisfied with Father’s justification, she could

have petitioned the court for assistance rather than imposing authoritarian

conditions on his custodial rights. The record demonstrates that Mother was

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familiar with the petitioning procedure as she filed several petitions for relief

over the course of these proceedings.

Moreover, the record belies the trial court’s reliance upon the

existence of a prior temporary PFA order as a basis to countenance Mother’s

interference with Father’s relationship with K.C. That issue is a red herring.

First, the record bears out that Mother withdrew the petition before Father

had an opportunity to counter the underlying allegations. The letter that

Mother filed with the PFA court to facilitate the withdrawal stated, “I no

longer feel threatened [by Father] in anyway [sic], shape or form . . .”

Exhibit R-30. Since the PFA was not contained in the record, the precise

allegations are uncertain. N.T., 2/6/13, at 72. Furthermore, the veracity of

Mother’s assertion was never established. Indeed, Father testified that

Mother’s allegations of abuse were inaccurate and untruthful. N.T., 2/5/13,

at 270.

Additionally, while the record reveals that police were called to quell

several disputes at the marital home, including an incident involving

Mother’s former paramour who resided in the home with Mother and K.C. for

approximately two months following the parties’ separation,8 the ensuing

____________________________________________

8 Mother subsequently filed a police report against her former paramour on August 8, 2012, complaining that he, too, harassed and threatened her. Mother alleged that the paramour, who suffered from borderline personality disorder and was not taking his medications, tormented her over a debt that she owed to him. N.T., 2/4/13, at 162-163; Exhibit P-1.

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police reports do not indicate that K.C. was threatened in any manner. See

Id. at 272; Exhibit P-1.

Moreover, the contempt petition that Mother filed under the temporary

PFA was based upon Father’s decision to terminate her cellular telephone

service, which the order did not prohibit, rather than any allegations of

abuse or harassment. N.T., 2/6/13, at 67. Indeed, so long as Mother was

content with Father vis-à-vis their relationship, she permitted Father to call

the home and visit with K.C. despite the temporary PFA order. Id. The

parties and the trial court agreed that the petition that Mother filed was

unrelated to Father’s interactions with K.C. Id. at 69-70.

We observe that the trial court’s support of Mother’s interference with

Father’s custodial rights based upon Father’s failure to provide the court-

ordered drug test of his hair follicles is also faulty. First, Mother conceded

that Father provided a thorough urinalysis report indicating that he was

drug-free. See N.T., 2/4/13, at 203. Second and more importantly, while

Mother defended her interference based upon Father’s noncompliance with

her demand for a hair follicle test, when she finally decided to bestow upon

Father overnight custody with K.C., Father still had not taken the follicle-

style drug screen that she had previously demanded. N.T., 2/4/13, at 230.

Thus, Mother’s contention that she was too concerned about Father’s

noncompliance to permit overnight custody was simply convenient

makeweight. In light of the complete control Mother assumed over Father’s

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custody rights, if she truly was worried that the urinalysis screening was

insufficient to ensure Father’s abstinence, she would not have agreed to

overnight custody without a follicle screen.

Thus, for all of the preceding reasons, we conclude that the certified

record does not sustain the trial court’s findings that “Mother would allow

frequent and continuing contact between [K.C.] and Father[.]” See Rule

1925(a) Opinion, supra. Considering Mother’s pattern of obstructionism

and the evidence that Mother regularly violated the temporary relocation

agreement, the trial court erred in assuming that Mother would comply with

the custody arrangement following a permanent relocation to Florida.

Additionally, the effects of Mother’s persistent conditioning of K.C. was

apparent in the six–year-old child’s in camera testimony. At the outset of

the interview, as the trial court was comforting K.C. and acquainting her

with its chambers and the people present during the in camera exchange,

K.C. blurted out, “Well, the place I want to live in is Florida, and I want to

stay with my mommy and my sister.” N.T., In Camera Hearing, 2/6/12, at

8. In view of the child’s completely unsolicited exclamation, the trial court

later asked her whether Mother or Father told her to say anything specific.

K.C. responded, “Well – not really . . . but I don’t like how my dad’s doing to

us.” Id. at 19. She continued, “well, he’s making it –well, he wants to win

this trial. And but, I want my mom to win this trial so I can live in

Florida . . .” Id. at 20. K.C.’s use of the collective pronoun “us” in response

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to questions regarding her individual preference and her perception of Father

as a meddler who was to blame for the custody litigation, reveals the child’s

susceptibility to Mother’s prompts.

Later in the exchange with the trial court, K.C. answered the court’s

inquiry of whether she liked Father’s new girlfriend, “Well, of course, no.”

Id. at 11. When prodded by the trial court, the child explained that she did

not like the girlfriend because Mother had informed her that “they want to

get married.” Id. at 11-12. She also explained that Mother does not want

her to go around the girlfriend. Id. at 12. The trial court asked K.C. if she

disliked the girlfriend based upon something that Mother told her. K.C.

stated, “Well, like, but she -- like – but – like -- like, [the girlfriend] just

walk in through for our family.” Id. at 13. K.C. then affirmed the court’s

statement that she blamed the girlfriend for ruining her parents’ marriage,

“Yeah. We won’t have all of this stuff.” Id. She also affirmed the court’s

suggestion that K.C. wanted her parents to reunite, “Yeah. Well, my dad is

trying to make them go back together.” Id. at 13-14.

All of the foregoing excerpts highlight Mother’s sway over K.C.,

whether purposeful or inadvertent. While the trial court recognized Mother’s

interference, it declined to consider Mother’s impact in weighing the child’s

testimony during the hearing. See Trial Court Opinion, 3/15/13, at 6.

Instead, the court honored the child’s stated preference to reside with

Mother notwithstanding Mother’s influence over her daughter’s testimony.

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Id. The trial court’s reliance upon K.C.’s stated preference to reside in

Florida despite Mother’s obvious impact was error.

Next, we address Father’s assertion that the trial court erred in

assuming that Mother would continue to reside in Florida without K.C. if the

court denied her petition for relocation. Father argues that the court

exacerbated its initial fact-finding error by subsequently using that finding to

invoke the well-established preference in Pennsylvania in favor of raising

siblings together whenever possible. We agree.

In explaining its rationale for granting Mother’s petition for relocation,

the trial court reasoned that K.C. and her sister would spend considerable

time apart if the petition was denied and Mother returned to Florida without

K.C. Hence, it opined that granting Mother’s petition to relocate with K.C.

was in the child’s best interest. Additionally, the court relied upon K.C.’s

misconception that Mother would leave her in Pennsylvania if the petition

was denied when it considered K.C.’s preference to remain with Mother and

her infant sister. Rather than correct K.C.’s false impression, the court

embraced her preference even though it was predicated upon a fallacy.

The factual underpinnings of the court’s position that relocation was

necessary for K.C. to continue the benefit of her close bond with her infant

sister are in error. Stated simply, the record does not support the inference

that Mother would have abandoned K.C. in Pennsylvania had the trial court

denied her petition to relocate with the child to Florida. If anything, the

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competent testimony of record supports the contrary finding that Mother

would live in Pennsylvania with both children.

During the hearing, Mother initially testified that she would commute

from Florida to exercise custody if the trial court denied her petition for

relocation. N.T., 2/4/13, at 268. However, when asked to confirm that she

would move to Florida without K.C., Mother equivocated, “I have not thought

about that. . . .” Id. at 269. Thereafter, she testified that she would be

reluctant to leave K.C. in Pennsylvania, “I do not know if I would [move]. I

can’t see leaving [K.C.] behind and going to Florida without her. I’ve been

with her for six years. I can’t imagine leaving her for that. And just

moving.” Id. Later, in response to the trial court’s inquiry about the

respective employment opportunities in Pennsylvania and Florida, Mother

indicated that, if the court denied the petition for relocation, she would have

to look for employment in Pennsylvania. Id. at 291. Likewise, she

previously testified that she searched for an apartment that was suitable for

her and her two daughters in Pennsylvania if the relocation petition was

denied. Id. at 123-124. Notwithstanding the trial court’s misstatement of

fact, the record does not sustain the conclusion that Mother intended to

return to Florida without K.C. if the court denied her petition for relocation.

While Mother’s testimony is equivocal, there is nothing in the certified record

to support the trial court’s finding that Mother would have, in fact, left K.C.

in Pennsylvania with Father had it not granted the petition for relocation.

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Thus, the court erred in reaching a factual finding that is not supported by

the record and by employing that finding to misapply the preference in favor

of keeping siblings together.

Next, we examine Father’s contention that the trial court erred in

relying upon Maternal Grandfather’s testimony regarding his newfound

desire to make amends with Father as evidence militating in favor of

Mother’s relocation. The following facts are relevant to this issue.

Throughout the custody hearing, several witnesses testified about an

altercation that occurred between Father and Maternal Grandfather during a

failed custody exchange while Mother and K.C. were in Florida. Apparently,

while Father was leaning inside Maternal Grandfather’s vehicle attempting to

remove his daughter from her car seat, Maternal Grandfather accelerated

the car away from Father and raced in the wrong direction up a one-way

street. The parties disputed who was at fault and presented divergent

descriptions of the incident. While the countervailing factual accounts do not

establish what actually occurred during the episode, the fact that Father and

Maternal Grandfather engaged in a clash that placed K.C. in peril

demonstrates the heightened animosity between the two individuals.

Maternal Grandfather also testified about his disdain for Father during

Mother’s case-in-chief. He outlined his prior interactions with Father over

the course of Mother and Father’s relationship, including his utter

disappointment with Mother for marrying Father. N.T., 2/5/13 at 38. In

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explaining his rationale for refusing to attend his daughter’s wedding, he

explained, “My wife and I were very displeased with [Mother’s] choice of

spouse, and . . . we felt that . . . we were making the right decision by not

going to the wedding[.]”. Id. at 39. Although he reconciled with Mother,

his relationship with Father was slow to form over the length of the

marriage. Id. at 40-42. Indeed, when asked during the custody hearing

whether he liked Father, Maternal Grandfather simply stated, “No.” Id. at

56. In addition, responding to the court’s specific inquiry about whether he

would invite Father to stay in his home during Father’s custodial periods in

Florida, Maternal Grandfather indicated that he would not. Id. at 86. He

posited that it would be a difficult decision and that he definitely would not

consider it unless the two had extended communications beforehand. Id.

However, following the close of all evidence, and over Father’s

objections, the trial court permitted Mother to reopen the record so Maternal

Grandfather could alter his prior testimony. Specifically, Maternal

Grandfather testified that upon further reflection, Father would, in fact, be

welcome in his home “with open arms, because that’s the right thing to do

to get over this hump.” N.T., 2/6/13, at 154. Maternal Grandfather

attributed his sudden perception of closure and K.C.’s best interest to his

observation of Mother and Father speaking civilly in K.C.’s presence. Id.

During cross-examination, Maternal Grandfather denied that his

illuminating realization would benefit Mother’s position in the custody case.

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Id. at 155. Interestingly, he also admitted that, earlier that very day, he

propositioned Father and paternal grandfather, “If [Father] agrees that

[K.C.] could go to Florida, there will be no more shenanigans.” Id. at 157.

He further admitted to engaging in inappropriate behavior over the past four

months, although he criticized both sides’ conduct. Id. at 158.

The trial court erred in permitting the rebuttal testimony over Father’s

objection. This Court reiterated the relevant principles as follows:

Generally the admission of rebuttal evidence is a matter within the sound discretion of the trial court. Rebuttal evidence is proper where it is offered to discredit testimony of an opponent's witness. Our Supreme Court has previously opined “where the evidence goes to the impeachment of his opponent's witness, it is admissible as a matter of right.” Furthermore, in order to constitute proper impeachment evidence, the rebuttal witness' version of the facts must differ from that of the witness being impeached.

American Future Systems, Inc. v. BBB, 872 A.2d 1202, 1213 (Pa.Super.

2005) (quoting Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695,

708-709 (Pa.Super. 2000) (internal citations omitted)). Hence, rebuttal is

designed to give a party the opportunity to counter evidence that his

opponent raised during the case-in-chief.

In Ratti, supra at 709-710, we upheld the trial court’s decision to

exclude the plaintiff’s proposed rebuttal evidence because, inter alia, it did

not serve to impeach or rebut the defendant’s evidence. We reasoned,

“Such evidence does not in any manner contradict the testimony given by

[the defendant’s witness]. . . . There simply was no inquiry, let alone a

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contrary response, concerning the subject matter sought to be introduced in

rebuttal.” Id. at 709.

Instantly, the court’s consideration of Mother’s proposed rebuttal

evidence was improper. Similar to the proposed rebuttal evidence in Ratti,

Maternal Grandfather’s testimony in the case at bar was not rebuttal

evidence because it failed to impeach Father’s evidence or contradict his

version of the facts in any manner. Stated another way, since Father did not

present any evidence that contradicted Maternal Grandfather’s original

testimony regarding his animosity toward Father, the so-called rebuttal

evidence actually was a self-serving recantation of Maternal Grandfather’s

prior testimony in order to assist Mother’s case. Unlike the trial court, we

will not countenance Mother’s attempt to manipulate the rules of evidence in

order to augment her position at the close of trial. As the recantation was

not proper impeachment evidence, it was not admissible as rebuttal. See

Ratti, supra (“we find the proffered rebuttal evidence was properly

excluded, as it does not serve to rebut the testimony [presented by the

defendant’s] expert.”). Thus, it was error for the trial court to rely upon the

Maternal Grandfather’s novel testimony as a basis to grant Mother’s petition

for relocation.

In summary, we do not disturb the trial court’s custody determination

pursuant to 23 Pa.C.S. § 5328(a). Neither the trial court’s reference to the

primary caretaker doctrine nor its consideration of Dr. Yudell’s limited

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opinion testimony regarding K.C.’s assimilation to Florida is grounds to

reverse the custody decision. In addition, the court properly considered the

totality of the evidence in determining the child’s best interest, including

K.C.’s activities while she resided in Florida pursuant to the temporary

relocation stipulation. Finally, in light of our deferential standard of review,

we reject Father’s challenge to the trial court’s application of the custody

factor regarding the parties’ respective employment and availability to

provide childcare even though the evidence presented at trial could have

supported a different conclusion. J.R.M., supra at 650 (“Ultimately, the

test is whether the trial court's conclusions are unreasonable as shown by

the evidence of record.”).

However, since the record will not sustain the trial court’s

consideration of the § 5337(h) relocation factors, we reverse that portion of

the order. Specifically, the trial court erred in (1) finding that Mother would

not thwart Father’s relationship with K.C. following relocation; (2)

discounting Mother’s influence over K.C.; (3) concluding that Mother would

abandon K.C. in Pennsylvania if relocation was denied; (4) misapplying the

preference in favor of raising siblings together; and (5) considering, under

the pretext of rebuttal, Maternal Grandfather’s recantation of his testimony

concerning his animosity toward Father. Moreover, we observe that the trial

court’s explanation for sanctioning Mother’s interference with Father’s

relationship with K.C. is defective insofar as it misinterpreted Father’s right

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to exercise partial physical custody as visitation that was subject to Mother’s

whims.

The foregoing errors implicate four of the ten factors listed in 23

Pa.C.S. § 5337(h). Specifically, the errors affected the trial court’s

consideration of (h)(3) (preservation of the child’s relationship with the

nonrelocating party); (h)(4) (the child’s preference); (h)(5) (the established

pattern of conduct to thwart the child’s relationship with the other party);

and (h)(10) (application of the common law preference for siblings to remain

together under the catch all provision). Collectively, these errors warrant

reassessing the trial court’s decision to grant Mother’s petition for relocation.

Simply stated, mindful of the several defects in the trial court’s relocation

analysis, we cannot accept the court’s conclusion that relocation is in K.C.’s

best interest. See Fuehrer v. Fuehrer, 906 A.2d 1198 (Pa.Super. 2006)

(“While the record offers support for the trial court's conclusion that the

children should continue to remain in their mother's custody, it does not

follow that this decision should result in the grant of Mother’s request to

relocate”).

Accordingly, we affirm the portion of the trial court’s March 15, 2013

order awarding Mother primary physical custody of K.C. and we reverse that

order to the extent that it grants Mother’s petition to relocate to Florida. As

our determination disturbs the overall scheme of the trial court’s custody

J-A26002-13

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arrangement, we direct the court to fashion an appropriate custody

schedule.

Order affirmed in part and reversed in part. Case remanded.

Jurisdiction relinquished.

Judge Ott Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/14/2014