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HomeMy WebLinkAbout01-5380 CIVILFALASHIA MELIUS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DOUGLAS A. MELIUS, DEFENDANT 01-5380 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., June 18, 2002:-- Falashia Melius, age 25, and Douglas Melius, age 37, were married on September 27, 1996. They are the parents of Brianna Melius, age 5, born October 28, 1996, and Douglas Melius age 4, born May 30, 1998. The parents separated on August 15, 2000. The father who was previously married, has a daughter, Hailey, age 10, born November 17, 1991. The father has had custody of Hailey since 1992. Hailey's mother has not been involved in her life for the last several years. On August 15, 2001, the father took Brianna, Douglas and Hailey to live at his mother's home in Twin Rocks, Cambria County, Pennsylvania. The mother instituted this complaint for custody on September 14, 2001. She filed a petition for emergency relief, which was heard on October 11, 2001, and resulted in an interim order that provides: Starting this Sunday, October 14, 2001, at noon, the children shall be with each parent on a week on/week off basis, with the mother having this upcoming week starting at noon October 14. The father shall provide all transportation pending further order of court following a conciliation hearing. 01-5380 CIVIL TERM After one transfer of Brianna and Douglas under this order, the mother made a private agreement with the father that she would meet him halfway to effectuate the changes in custody. The parties have followed that arrangement to date. Brianna will be starting kindergarten in the fall of 2002, and Douglas will be starting kindergarten in the fall of 2003. The week on week off shared schedule will not work once Brianna starts kindergarten. Both parents seek primary physical custody. A hearing was conducted on June 6, 2002. Until their separation, the mother and father lived in a home he owned in Newville, Cumberland County. The father and mother worked different shifts which afforded them little time to spend together. The mother worked a 2:00 p.m. to 11:00 p.m. shift six to seven days a week at a Texaco station in Carlisle. She earned $7.50 an hour. Since 1989, the father worked in a cold storage warehouse of a Giant Foods Distribution Center in Carlisle between 5:30 a.m. to 2:00 p.m. He earned $17.00 per hour. The parents did not have the children in daycare because their work schedules allowed one of them to be with the children most of the time. The mother's parents live in Gardners, Adams County, and they rarely took care of the children. The father's mother (his father is deceased) lives in Twin Rocks, Cambria County, and she developed a closer relationship with the children. The paternal grandmother visited in the parents' home for several days two or three times a month. The parents and children visited her in Twin Rocks at least once a month. The father wanted to transfer to a different type of job to protect his health. The -2- 01-5380 CIVIL TERM work in a cold storage facility resulted in his suffering from pulmonary asthma. He also has a back problem as his job involved heavy lifting. He learned of the possibility of transferring his employment to Martins Foods, a division of Giant Foods, located near Twin Rocks. The father testified that he and the mother decided to move, and he arranged a job transfer to Martins Foods. The paternal grandmother offered to have the family move into her thirteen-room home until "they got on their feet." The father and his mother testified that when she learned that the family would be moving to her home, she got bedrooms ready and made other adjustments to receive them. The mother had always wanted to go to college, and the father suggested that she could attend a community college in Twin Rocks that offered courses at $60 per credit. The mother testified that she discussed moving to Twin Rocks with the father, but never made a commitment to move. The father testified that after he committed to transfer his employment, the mother said that she would not move, and told him "it was over." He then moved with just the children. A few days after the he left, the mother moved into the home of her parents. The mother made no immediate effort to see Brianna or Douglas, nor did she call them. The next time the father heard from the mother was after she received the custody complaint. The mother acknowledged that after the father moved, she never called the children or saw them until the order of October 11, 2001 was entered. After the separation, both parents faced serious financial difficulties. The mortgage on the father's home in Newville was foreclosed, and a car the mother had -3- 01-5380 CIVIL TERM been driving was repossessed. They both went into bankruptcy. The father's job with Martins Foods is from 6:00 a.m. to 2:30 p.m., with days off on Sundays and Wednesdays. He now earns $11.45 per hour because he is not receiving the premium pay for working in the cold storage facility. The grandmother does not work outside of the home. She cares for the children when the father is at work and she drives the children where they need to go. Brianna goes to pre-school in Twin Rocks. The pre-school is in the same school building where she will attend kindergarten if she lives with the father in the fall of 2002. If the children live with the father, Douglas will go to the same pre-school that Brianna is now attending. Since October 1, 2001, the mother works as a data processor at the Giant Foods corporate office in Carlisle. She works weekdays 7:30 a.m. to 4:00 p.m. On May 22, 2002, she moved into a three-bedroom home in Gardners on a one-year lease. This home is about a ten-minute drive from her parents' home. Currently, on workdays when she has Brianna and Douglas, she gets up at 6:00 a.m. makes breakfast, and has someone drive the children to her parents' home. She picks them up after she finishes her work at 4:00 p.m., and takes them home. She testified that she has made arrangements with a childcare facility if she has Brianna and Douglas during the school year. The father testified that the mother, who has a thyroid problem, is very emotional, and hyperactive. She has threatened suicide on several occasions (her uncle committed suicide), sometimes in front of the children. The father has wanted -4- 01-5380 CIVIL TERM her to undertake some counseling, but she has never done so, although she does take some medications prescribed by her family doctor. The mother did not challenge this testimony. The father testified that the mother had difficulty with Hailey, and was mean to her on many occasions when they lived in Newville. The mother acknowledged that at times, she did get mad at Hailey. She testified that during the early part of her marriage Hailey's mother was still around, and she did not trust her husband and his former wife. She testified that it was hard for her to accept that he had a child with another woman. In the spring of this year, the father started seeing marks on the children when they returned from their weekly periods of custody with the mother. Brianna told him that the maternal grandparents were striking her and Douglas when the mother was at work. The father took Brianna and Douglas to the Cambria County Children and Youth Service Agency on May 8, 2002. An agency worker interviewed both children. Brianna gave a statement of abuse by her grandparents which resulted in a referral to the Adams County Youth Service Agency. Without talking to the mother, the Adams County Youth Service Agency notified her in the latter part of May that the allegations were unfounded. The agency worker in Cambria County testified that she visited the home of the father in Twin Rocks. She talked to Hailey. She felt that all of the children have excellent interaction with the father, and that he is a caring parent. She recommended that the father obtain some counseling for Brianna. He followed this recommendation, -5- 01-5380 CIVIL TERM and he also participates in counseling with Hailey. DISCUSSION The ultimate issue in a custody contest between parents is what is in the best interest of the children. Robinson v. Robinson, 538 Pa. 52 (1994). Under Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), because the geographical distance between the father living in Cambria County and the mother living in Cumberland County will be significant enough that it will alter the relationship between the non-custodial parent and the children, it is necessary to analyze the evidence utilizing the factors set forth in Gruber v. Gruber, 400 Pa. Super. 174 (1990). Those factors are: 1. the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; 2. the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; 3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. In Beers, the Superior Court stated that it has consistently held that Gruber "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." As to the first Gruber factor, the Superior Court stated in Anderson v. McVay, 743 A.2d 472 (Pa. Super. 1999): A court need not consider only economic benefits when determining whether relocation substantially improves the quality of life of the parent .... Rather, "when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside." This is because "the best interests of -6- 01-5380 CIVIL TERM the child are more closely aligned with the interest and quality of life of the custodial parent .... "[T]here is no need.., to show an independent benefit, apart from that of [the moving party], flowing to the children because of the relocation. [See] Zalenko v. White, 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) In Ferdinand v. Ferdinand, 763 A.2d 820 (Pa. Super. 2000), the Superior Court reversed an order of the trial court denying a mother's petition to relocate where non- economic improvements in the mother's quality of life and happiness would inure to the benefit of the children. See also, Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002). In the present case, the father and mother have been equal caretakers of Brianna and Douglas. When the parents were working different shifts, with the mother sometimes working seven days a week, they had little family discourse. They had serious financial difficulties. The father's health necessitated his obtaining work other than in a cold storage facility, even at a reduced wage. We believe his testimony that the mother initially agreed to move to Twin Rocks with him, and that after he obtained a transfer of employment she decided to end their marriage. Under the circumstances, the advantages of his then moving to Cambria County, where there is a more stable environment for himself and the children, has substantially improved the quality of the his life, and the life of Brianna, Douglas and Hailey. The father's motives were sound. His move was not the result of a momentary whim. Because the mother changed her mind about moving, she now seeks primary physical custody of Brianna and Douglas. The mother has never had a close -7- 01-5380 CIVIL TERM relationship with Hailey. Her resentment of Hailey reflects her immaturity. Brianna and Douglas have lived with Hailey their entire lives. In Wiskoski v. Wiskoski, 427 Pa. Super. 531 (1993), the Superior Court of Pennsylvania stated: Absent compelling reasons to the contrary, it is the policy of this Commonwealth that siblings should be raised together whenever possible. Pi/on v. Pi/on, 342 Pa. Super. 52, 492 A.2d 59 (1985). "This factor is not diluted by the fact that the children involved are half bothers and sisters." In re Davis, 502 Pa. 110, 124, 465 A.2d 614, 621 (1983). While this factor cannot be elevated automatically above all other factors, it must be weighed in conjunction with the others. Id. (Emphasis added.) "Good reasons are not necessarily "compelling" reasons for disrupting the integrity of a family unit. Pi/on v. Pi/on, supra. "In defining the phrase 'compelling reasons' this court has said that the evidence must indicate that is was 'necessary' to separate the children, and the evidence was 'forceful' in this regard." Cyran v. Cyran, 389 Pa. Super. 128, 132, 566 A.2d 878, 880 (1989), citing A/bright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). Absent compelling reasons, "the children should be raised together in one household, for this permits the continuity and stability necessary for a young child's development." Pi/on v. Pi/on, supra, 342 Pa. Super. at 56, 492 A.2d at 60. Considering all of the evidence, we are satisfied that there is more stability for Brianna and Douglas living with their father, grandmother and Hailey in Twin Rocks than there would be in living in their mother's home in Gardners. It is in the best interest of the children that they continue to live with their father. We can fashion an order that will provide realistic meaningful periods of temporary physical custody for the mother that will adequately foster her ongoing relationship with Brianna and Douglas. Accordingly, the following order is entered. -8- 01-5380 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2002, IT IS ORDERED: (`1) The interim order of October `1 `1,200'1, is vacated and replaced with this order. (2) Douglas A. Melius and Falashia Melius shall have joint legal custody of Brianna Melius, born October 28, '1996 and Douglas Melius, born May 30, '1998. (3) The father shall have primary physical custody of the children. (4) The mother shall have temporary physical custody of the children as follows: (a) In the summer of 2002, during alternate weeks. (b) During the school year, every Friday evening to Sunday evening, to extend to Monday evening if Monday is a school holiday and a work holiday for the mother. (c) During summers after 2002, for three consecutive weeks starting on the first Sunday of the school summer vacation. After two consecutive weeks with the father, the mother shall have another three consecutive weeks. (d) Each Thanksgiving from 3:00 p.m. on Thanksgiving Day through the evening of the day before school starts. (e) Each Christmas from 5:00 p.m. Christmas Day until the evening of December 30th. (f) The parents shall meet halfway to effect changes in custody. -9- 01-5380 CIVIL TERM By the Court, Edgar B. Bayley, J. Thomas S. Diehl, Esquire For Plaintiff Rebecca R. Hughes, Esquire For Defendant :sss -10-