An Appealing Approach To An Abbreviated Trial

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The ruling in C.T. v. A.W.T. is non-precedential but instructive nonetheless.  It’s a relocation decision out of Philadelphia County involving a six-year-old child.  The single sex relationship resulting in the birth of S.T. ended in 2014.  In 2018, the parties reached an agreement giving A.W.T. primary physical and C.T. alternate weekends from Friday to Sunday and every Friday overnight to Saturday.

Seven months after the agreed custody order was entered, A.W.T. filed a proposed relocation plan to move to suburban Richmond, Virginia.  C.T. objected and filed a petition to modify the agreed order.  The facts that were developed at hearing were that A.W.T. worked at Verizon, but also assisted women in home childbirth as a doula.  According to A.W.T., to be an accredited doula in this region required a nursing license.  Virginia did not.  There was also reference to a support network, as it appeared that A.W.T. was from that part of Virginia and her employer had indicated that a transfer to Virginia would be approved.

It appears that during A.W.T.’s presentation the trial court decided to make some inquiries of its own about the motivations behind move, prompting the court to stop the testimony and hold that the proposed reasoning for the move was “invalid.”  Specifically, the court held that the primary motivation was for A.W.T. to be with her fiancée.  No other witnesses were heard and no cross-examination was undertaken before the trial court said it was moving on to C.T.’s modification request.  That portion of the hearing was confined to argument of counsel.  The trial judge did ask the parties specific questions during that argument, but neither part actually testified in connection with the counterclaim except to answer the judge’s questions.

The proceedings ended with C.T. securing custody every weekend from Friday afternoon to Monday morning except for the third weekend, which would be A.W.T.’s.  Picking up on A.W.T.’s request to split summers if relocation was granted, the trial court divided summers without approving a relocation.

No Section 5323 analysis of the custody factors was recited at the conclusion of the hearing or in the trial court Opinion.  So, you can tell there was going to be an appeal.  Basis 1: Incomplete hearing.  Basis 2: Failure to provide the Section 5323 analysis.  You can probably surmise the result.

What makes the ruling interesting is that the Superior Court finds that allegations of a due process violation triggers a plenary and de novo review.  Contrast this with the usual custody standard, which is “the broadest type,” but undertaken with an abuse of discretion standard.  The appellate court does not make independent factual determinations in the typical custody case and can reject trial court conclusions only if there is an error of law or unreasonable findings.  The Court cites S.T. v. R.W.  192 A.3d 1155, 1160 (Pa.Super. 2018).  The signal here is that the failure to permit a complete record invites an appeal based upon a more stringent standard of review.

The next segment of the Opinion is as one would expect, citing A.M.S. v. M.R.C., 70 A.3d 830,836 (Pa.S. 2013) for the proposition that these cases require an explicit analysis of the 10 relocation factors and the 16 child custody factors.

Then the Opinion bumps into what can best be termed a “procedural enigma” created by the statute.  23 Pa.C.S. 5337(g)(1) states that in relocation cases, the courts are to hold an “expedited full hearing” before the relocation occurs.  We know from the Opinion that the notice of relocation was issued in April 2019.  The hearing on all petitions was on August 20, 2019.  The words “expedited” and “full” are inherently problematic.  As we all know, relocations inevitably come with a fuse suggesting that a decision needs to be made before a new school year begins.  In this case, one of the ostensible benefits of the relocation was that the six-year-old child had professed an interest in animal husbandry and that the Virginia elementary school had a farming program.  The trial judge was not impressed with that argument, nor that “need to leave the crime ridden city” argument in favor of bucolic Virginny.

The other subject, which was explored at trial, was the licensing and employment opportunities of a doula in Pennsylvania vs. Virginia and other states (commonwealths, actually).  This was a very important topic, but how is this to be done on an expedited basis in a world where discovery is only available by court order?

The Superior Court notes that in addition to truncating the hearing, many answers to questions were also cut off by the trial judge.  The ultimate ruling on the record was “She doesn’t have to go to Virginia.”  The Court describes the trial court’s approach as haphazard.  The appeals court also explicitly holds that the classic judicial question, “Is there anything else [before I rule]?” is not a basis to argue “waiver” where the proceedings otherwise demonstrate that the question was posed not sincerely, but as a means to telegraph that the record was closing.

The Order was vacated and the case remanded.  However, because the appeal contained no explicit request for re-assignment of the case, the Court ruled it would be remanded to the same Judge they were reversing.  See Com. v. Whitmore, 912 A.2d  827, 834 (Pa. 2006).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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