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HomeMy WebLinkAbout2005-4200 Civil SHARON L. BOOKAMIRE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DOUGLAS J. BOOKAMIRE, : NO. 05-4200 CIVIL TERM Defendant IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., October 8, 2007. In this custody case, Plaintiff Sharon L. Bookamire has filed an appeal to the Pennsylvania Superior Court from an order granting her shared legal custody and partial physical custody of Kalyn M. Bookamire and Joshua A. Bookamire. The order appealed from reads as follows: 1. Legal custody of the children shall be shared by the parties; 2. Primary physical custody of the children shall be in Defendant, the father; 3. Temporary or partial physical custody of the children shall be in Plaintiff, the mother, at the following times: a. During the school year, (1) On alternating weekends, from Friday after school or work to Monday morning when Plaintiff shall transport the children to school. In the event that Plaintiff’s weekend coincides with a Monday school holiday, Plaintiff’s weekend shall extend to Tuesday morning; (2) Each week, from Tuesday after school or after work to Thursday morning when Plaintiff shall transport the children to school; b. During the summer, for one week out of three, commencing with the week 1 immediately following the completion of the school year 4. Thanksgiving shall be shared such that Defendant shall have physical custody of the children from 9:00 a.m. to 3:00 p.m., and Plaintiff shall have physical custody of the children from 3:00 p.m. to Sunday at 12:00 noon; 1 Order of Court, May 9, 2007. 5. Christmas shall be divided into two Blocks. Block A shall be from Christmas Eve at 12:00 noon to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 26 at 12:00 noon. Plaintiff shall have block A and Defendant shall have Block B in odd-numbered years, and Defendant shall have Block A and Plaintiff shall have Block B in even-numbered years; 6. Except as otherwise provided herein, the party receiving custody shall be responsible for transportation; 7. The parties shall attend co-parenting sessions with a co-parenting coordinator, the expense of which shall be shared equally by the parties; 8. Nothing herein is intended to preclude the parties from deviating from the terms of this order by mutual agreement. The ground for Plaintiff’s appeal is that the order, by not granting shared physical custody of the children to Plaintiff, was “wholly inconsistent with the recommendations contained in the [custody evaluation] report” prepared by Interworks, a family counseling 2 center. This opinion in support of the custody order granting partial physical custody to Plaintiff is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Plaintiff, Sharon L. Bookamire, resides at 124 Second Street, Enola, Cumberland 3 County, Pennsylvania. Defendant, Douglas J. Bookamire, resides at 10 Grinnel Drive, 4 Camp Hill, Cumberland County, Pennsylvania. The parties were married on October 16, 5 1993. Plaintiff filed a complaint for divorce in January of 2005; the divorce action is 2 Plaintiff’s Statement of Matters Complained, filed July 12, 2007. 3 N.T. 4, hearing, May 7,2007 (hereinafter N.T. __). 4 N.T. 45. 5 N.T. 5. 2 6 still pending. Two children were born of the marriage: Joshua A. Bookamire (d.o.b. 7 February 25 1995) and Kalyn M. Bookamire (d.o.b. September 24, 1997). The children 8 attend school in the Cedar Cliff School District. Plaintiff mother currently resides 9 outside the Cedar Cliff School District in Cumberland County, Pennsylvania. Defendant’s home, which was the marital residence, is within the Cedar Cliff School 10 District. Problems in the marriage began the year after the birth of the parties’ first child. Plaintiff was diagnosed with postpartum depression in 1996 and has been prescribed 11 medication to treat it “off and on” since then. In 1997, Plaintiff had her first 12 extramarital affair. In 2003, Plaintiff had a “series” of extramarital affairs. Also, around this same time, Plaintiff began drinking on a daily basis and using illegal drugs. Plaintiff’s drug use included a six-month period of daily marijuana use and the occasional 13 use of cocaine. Both parties sought and received individual counseling in 2004 – 14 Plaintiff for three months for depression and Defendant for approximately one year 15 after learning of Plaintiff’s second extramarital affair. 6 Plaintiff’s Exhibit 1, at 5, hearing, May 7, 2007 (hereinafter Plaintiff’s Exhibit __). 7 N.T. 5. 8 N.T. 16. 9 Id. 10 N.T. 15. 11 Plaintiff’s Exhibit 8. 12 Id. 13 Id., at 9. The Custody Evaluation Report further stated that Plaintiff claimed to have stopped using illegal drugs but admitted to some daily use of alcohol. Id. 3 During the period from February, 2004, until the Plaintiff moved out of the marital 16 home in September, 2005, the couple spent little, if any, time together. Defendant father worked nights. Defendant would return from work in the mornings at approximately 7:30 a.m., at which point Plaintiff would either remain asleep or depart for the day. Defendant would then get the children off to school. In the evening, after Defendant had put the children to bed, Plaintiff would return to the home at 17 approximately 9:40 p.m to sleep. Plaintiff spent little time with the children during this period, leaving Defendant to care for them. It was during this period, in January, 2005, that Plaintiff filed a complaint for divorce. She moved out of the marital home in September, 2005, and began residing with a man named Russell Burnhisel of Enola, Cumberland County, Pennsylvania, to whom 18 Plaintiff has since purportedly become engaged. Mr. Burnhisel has two children from a 19 previous marriage. The extent to which Mr. Burnhisel’s children reside at the home in Enola is unclear from the record. The parties participated in their first custody conciliation conference on September 27, 2005 – shortly after Plaintiff moved out of the marital home. A temporary custody order was entered by this court upon recommendation of the Custody Conciliator and 14 Id, at 8. 15 Id, at 13. 16 N.T. 48. 17 N.T. 47. 18 Plaintiff’s Exhibit 7. 19 N.T. 20. 4 agreement of the parties on October 4, 2005. The order provided that the parties share legal custody of the children and that, “[p]ending a custody evaluation, Father … have 20 primary physical custody of the children.” The order further provided that Plaintiff mother have temporary or partial physical custody on alternating weekends and every 21 Wednesday evening after school or work until Thursday morning. An October 2005 incident involving Plaintiff is illustrative of the persistence of some of Plaintiff’s problems. Plaintiff became intoxicated and involved in an argument with Russell Burnhisel at his residence in Enola. Neighbors notified the police and Plaintiff was taken to a local hospital. It is unclear from the record whether the Bookamire children or Mr. Burnhisel’s children were present at the residence at that 22 time. Despite an initial disagreement between the parties as to who would conduct the custody evaluation, an entity known as Interworks began the custody evaluation on 23 September 14, 2005. Interworks is a small therapy center specializing in family 24 issues. The evaluation process ended February 14, 2007, and a report, prepared by 25 Interworks director Deborah Salem, was then submitted to the parties’ attorneys. 20 Order of Court, October 4, 2005. 21 Id. 22 N.T. 31; See also Plaintiff’s Exhibit 4, 9. 23 Plaintiff’s Exhibit 1. 24 N.T. 7. 25 N.T. 9; Plaintiff’s Exhibit coversheet. 5 Plaintiff filed a petition to modify the Temporary Custody Order on November 1, 2006. Following a second custody conciliation conference, a hearing was held before this court on May 7, 2007. At the hearing, Plaintiff chose not to testify. Instead, she relied on the testimony of Deborah Salem of Interworks and the report prepared by Ms. Salem. Deborah Salem testified on behalf of Plaintiff as an expert in the areas of custody 26 evaluation and family therapy. Ms. Salem opined that Plaintiff should be awarded 27 equal physical custody of the children. Specifically, Ms. Salem recommended that 28 Plaintiff have one more day with the children per week throughout the year. Ms. Salem stated that she based her recommendation on her belief that Plaintiff had shown herself able “to seek change, to carry out change, [and] to be invested in her children,” adding 29 that the children “showed a strong attachment to [Plaintiff],” a “longing.” Ms. Salem also based her recommendation on concern that Defendant’s “trouble moving on 30 [emotionally] is impacting on the children.” Ms. Salem also recommended that both 31 parents attend co-parenting sessions. 26 N.T. 8. 27 N.T. 13 – 14. 28 N.T. 11. 29 N.T. 29. 30 N.T. 36–37. 31 N.T. 12. 6 32 Defendant testified on his own behalf. He emphasized, inter alia, that he had 33 been the primary caregiver with respect to the children and that he had taken 3435 responsibility for the “safety and wellbeing of the children,” including their education. Plaintiff’s counsel argued that his client should be given equal physical custody with the Defendant based on the recommendation contained in the custody evaluation 36 report. Following the hearing, the court entered the order of May 9, 2007, quoted above, increasing the amount of Plaintiff’s temporary or partial physical custody of the children but stopping short of granting her equal physical custody. This custody order increased Plaintiff’s temporary or partial physical custody of the children by granting her one more day of custody per week during the children’s school year. It also awarded Plaintiff temporary or partial physical custody for one week out of three during the 37 children’s summer recess. The effect of the order was to provide Plaintiff mother with approximately 172 overnights with the children per year, a number only marginally less 38 than absolute shared physical custody. This is the order now on appeal. 32 N.T. 53. 33 N.T. 48. 34 N.T. 52. 35 See N.T. 49. 36 N.T. 56. 37 Order of Court, May 9, 2007. 38 This represents an increase in Plaintiff’s physical custody from approximately thirty-seven percent under the Order of Court filed on October 4, 2005, to approximately forty-seven percent under the Order of Court filed May 9, 2007. 7 Plaintiff argues in her Statement of Matters Complained of on Appeal that, “the substantial body of evidence was a highly detailed report prepared by Deborah Salem of 39 Interworks.” Plaintiff contends that the report “strongly recommended equal custody 40 between mother and father.” By continuing “primary physical custody [in] the Defendant,” Plaintiff claims, “the courts’ [sic] ruling is inconsistent with the evidence 41 presented.” DISCUSSION Custody orders may be modified upon a showing by either party that a change in the current custody arrangement would be in the best interest of the child. B.B. v. M.M.B., 448 Pa. Super. 133, 141, 670 A.2d 714, 718 (1996); see also 23 Pa. C.S. §5310 (West 2001). The paramount concern of the court in such cases is the best interest of the child; all other considerations are deemed subordinate to the child’s physical, intellectual, moral, and spiritual wellbeing. Warren v. Rickabaugh, 410 Pa. Super. 431, 435, 600 A.2d 218, 220 (1991). In this case, in order to determine the best interests of the children involved, the court considered all of the evidence, including the testimony of Defendant and Ms. Salem, as well as Ms. Salem’s custody evaluation report. Some concerns about Plaintiff still exist. Although Plaintiff has been in a relationship with Mr. Burnhisel for approximately three years, the record contains no information on his interaction with the children. There is also no information concerning Mr. Burnhisel’s 39 Plaintiff’s Statement of Matters Complained, filed July 12, 2007. 40 Id. 8 interaction with Mr. Burnhisel’s own children or how the parties’ children interact with his children or even when those children are present in the home. Also, despite the custody evaluator’s contention in the custody evaluation report that Plaintiff no longer abuses alcohol, the October, 2005 incident as well as the report’s statement that Plaintiff continues to use alcohol daily cast doubt on that assertion. In addition, Plaintiff has a history of depression and it is unclear from the record whether she is currently receiving treatment. Defendant has provided a safe, stable environment for the children for the past four years. He has nurtured their academic development and provided structure in their daily 42 lives. As the Superior Court has noted, “[w]hen a child receives love, guidance, companionship, and direction from a parent on a consistent basis, a firm foundation is being laid for the child’s future healthy development.” Gonzalez v. Gonzalez, 337 Pa. Super. 1, 8, 486 A.2d 449, 452 (1984). In short, Defendant has been the primary caregiver and “the trial court must give positive weight to the parent who has been the primary caregiver,” even if both parents are fit.Gonzalez v. Gonzalez, 337 Pa. Super. 1, 8, 486 A.2d 449, 453 (1984)(citing Hugo v. Hugo, 288 Pa. Super. 1, 430 A.2d 1183 (1981)).In addition, Plaintiff’s history with respect to the family has been less than entirely responsible. Although the opinions of expert witnesses, whether involving custody matters or not, should be afforded consideration, they are not binding on the court. Watters v. Watters, 41 Id. 42 N.T. 52. 9 2000 Pa. Super. 224, ¶5, 757 A.2d 966, 968-69 (Pa. Super. Ct. 2000). In accordance with this principle, the court adopted in part Ms. Salem’s recommendation that Plaintiff mother be awarded an additional day of physical custody each week and that the parents submit to co-parenting counseling but did not delegate to her responsibility for the entire order. Plaintiff’s assertion that the court’s May 9, 2007, order was “wholly inconsistent 43 with the recommendations contained in the [Interworks’] report” is simply not accurate. CONCLUSION In summary, the custody evaluator’s testimony and report, while entitled to consideration, were not binding on the court. Indeed, some of her recommendations were adopted. However, Defendant father has provided a safe and stable home for the children for nearly four years, and the court was not convinced of the wisdom from the children’s standpoint of expanding Plaintiff’s physical custody rights to a totally shared custody arrangement. By the Court, __________________________ J. Wesley Oler, Jr., J. Richard R. Gan, Esquire Attorney for Plaintiff Richard C. Rupp, Esquire Attorney for Defendant 43 Plaintiff’s Statement of Matters Complained, filed July 12, 2007. 10