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HomeMy WebLinkAbout2006-2786 Civil ERICA GEROW, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHARLES GEROW, : DEFENDANT : 06-2786 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., February 27, 2008:-- Charles Gerow, age 52, and Erica Gerow, age 37, were married in December, 1997. This was a second marriage for the father. They were divorced on December 18, 2007. They have three children, Eric, age 8, born February 2, 1999, Alexander, age 7, born December 16, 2000, and Stephanie, age 5, born December 5, 2002. The father filed a complaint seeking primary physical custody of the children. The mother filed a complaint seeking to move the children to Cleveland, Ohio. Hearings were conducted on January 23 and 24, and February 11, 2008. The mother lives in the Borough of Camp Hill, where Eric attends third grade and 1 Alexander attends second grade in the Camp Hill School District. Stephanie attends a preschool in Camp Hill. The father lives in the former marital residence in Mechanicsburg, which is in the Cumberland Valley School District. The father, a lawyer, is the chief executive officer of Quantum Communications, a public relations firm in Harrisburg which he started in 2001. The mother is a physician who obtained 06-2786 CIVIL TERM her medical degree from the Penn State College of Medicine in 1997. In 1998, she 2 completed one year of residency in York. When she became pregnant with Eric, she and the father agreed that she would put a medical career on hold and become a stay at home mother. She and the father continued that agreement after Alexander and Stephanie were born. In 2001, the family was having financial problems which prompted the father to start his public relations business. Building that business took an extensive amount of his time, and he was often away on business trips. The parents started having marital problems in 2003, and by the beginning of 2004, the father was spending very few 3 nights in the marital home. He took most of his clothes from the home. Being essentially separated, the mother realized that she would have to work. She secured a residency in pathology at the Penn State Medical Center in Hershey, which she started in September, 2004. One of the reasons she chose this field of medicine was because it does not require her to work nights or be on a medical call, which is consistent with her responsibilities in raising her children. The mother excelled in this program. She utilized a good nanny to help care for her children when she worked, and her mother, who lives in New Jersey, often came to her home to help her. In the beginning of 2005, Alexander became ill with constant diarrhea resulting 1 The current school year ends on June 6, 2008. 2 In Pennsylvania, two years of residency are required to practice medicine. 3 Until this time, the father unsuccessfully ran for public office three times. -2- 06-2786 CIVIL TERM in weight loss. He came under the care of a pediatric gastroenterologist but his situation was not improving. His physical condition reached the point where the mother reluctantly left her residency in Hershey at the end of January, 2005, to care for him. In May, 2005, biopsies were taken under anesthesia and he underwent an endoscope and sigmoidoscopy. Eventually, the condition resolved in the summer of 2005. During this entire period, the father was not seeing the children that often, although the mother asked him to. In the fall of 2005, the father became more involved with the children. The mother’s parents suggested that she move in to their home in New Jersey to help her to get reestablished. She turned down the offer because she did not want to take the children that far from the father. She even went on some vacation trips with the father and the children, in which the parents stayed in separate rooms, to foster the father’s relationship with the children. In 2005, the mother wanted to continue her residency at the Penn State Medical Center but the positions were filled. She tried to obtain a teaching position and a job working for an insurance company, but was unsuccessful. In the summer of 2006, she started a master’s degree program in public health at Johns Hopkins University in Baltimore, Maryland. Most of the work is done online and she expects to obtain her degree in May, 2008. In August, 2007, she started working on a non-paying pathology research project at Johns Hopkins University. She spent two eight day periods there, then reverted to commuting on Tuesdays and Thursdays. In September, 2006, the parents entered into a marital settlement agreement -3- 06-2786 CIVIL TERM which contained a provision providing the mother with primary physical custody of the children and the father with periods of temporary physical custody. The father did not exercise all of his periods, including in 2007 when he spent one week on vacation with them when the agreement allowed him three weeks. However, by verbal agreement, he increased his daily time with the children starting in November, 2007, to Wednesday and Thursday overnights during one week and in the following week overnights from Wednesday until Sunday evening. The mother acknowledges that the father loves the children, that they love him, and that he is now putting forth a real effort in his relationship with them. His business is now well established, he does not travel as much, he is spending less time at work, and he generally does not work later than 6:00 p.m. The father started seeing Mandi Derr-Bailey, age 32, in November, 2007. He has known her for about ten years. She is a psychotherapist at Holy Spirit Hospital in Camp Hill. She has a daughter Trinity, age 5. She and the father have homes that are about a mile apart, although she is now spending most nights in his home. The mother met Alan Rushing, age 58, in May, 2006, when they were both volunteering in Mississippi to help victims of hurricane Katrina. Rushing is a lawyer, who is vice president and senior trust officer at PNC Bank in Camp Hill. He moved in with the 4 mother in July, 2006, and they were married at the end of December, 2007. This is his __________ 4 Although this caption has not been amended, the mother now uses the name, Erica Rushing. -4- 06-2786 CIVIL TERM fourth marriage. He has four adult children. The Gerow children get along well with Rushing and Derr-Bailey. Eric, Alexander and Stephanie are delightful, healthy, well-adjusted, happy children. They love both their mother and father. Both parents attend all parent teacher conferences and most of the children’s school and other activities. They both understand the importance of fostering the relationship of the children with the other parent. The father acknowledges that the mother is a good mother, and the mother acknowledges that the father has become a good father. The sole basis the father gave in his testimony for seeking a change of primary physical custody was that there has been a recent lack of communication caused by the mother which is not in the best interest of the children. Generally, there has been reasonably good communication between these parents. Whatever decrease there may have been is a two-way street. The ultimate determination in a custody case is Ferdinand v. Ferdinand, what is in the best interest of the children. 763 A.2d 820 (Pa. Super. 2000). After examining all of the evidence we find that the father’s claim of a recent significant lack of communication that would warrant a change of primary physical custody to be specious. The mother provides excellent structure in the children’s lives, and they have become accustomed to the routine in her stable household. The mother is very attendant to their needs, and she has sacrificed for them. The children have thrived under her primary physical custody. There is no basis for now changing primary physical custody to the father. -5- 06-2786 CIVIL TERM The mother now wants to pursue a career in medicine in the field of pathology, which she has a real interest in, has prepared for, and which she believes will best enable her to care for her children. Having dropped out of her residency at Penn State in the beginning of January, 2005, there was no reasonable likelihood of her being accepted again by Penn State. She entered into a national match program to secure a residency. She was offered positions in two prestigious programs before the match: the Cleveland Clinic and the Mayo Clinic. She chose the Cleveland Clinic. Her pursuance of a master’s degree and her work on the research project at Johns Hopkins 5 were positive parts of her resume for securing this residency. The residency is for four years in anatomic and clinical pathology. After she finishes she will take examinations to become board certified. The Cleveland program offers a one year fellowship in dermato pathology, which is the pathology of skin lesions. The mother intends to apply for that program after she is board certified. She will have a substantially greater opportunity of obtaining the fellowship by completing her residency at the Cleveland Clinic. Dermato pathology will allow her to practice medicine in an area where she can obtain a weekday 9:00 a.m. to 5:00 p.m. position with no on-call responsibilities. The mother chose the residency in Cleveland because of the quality of the program and the opportunity for the follow-up fellowship. The residency will pay the __________ 5 The mother accepted this residency knowing that if she withdraws from another program, her opportunity to practice medicine will essentially be over. -6- 06-2786 CIVIL TERM mother $43,000 a year with comprehensive medical insurance that will cover the 6 children. She has an education loan of approximately $200,000 that will legally be put on hold while she is a resident. The Cleveland Clinic is southeast of downtown Cleveland which will allow the mother to live in the affordable suburbs, a short commute by car or light rail, and where there are good local schools. She intends to rent a home 7 with her husband in Shaker Heights or that general area. The driving time to the father’s home in Mechanicsburg will be about five to five and a half hours. The mother’s husband is looking for a banking position in Cleveland. The mother intends to enroll the children in a school district where there is a full daycare kindergarten with before and after school programs which can be utilized depending on the work 8 schedules of her and her husband. The father’s position is that the mother, by now choosing to pursue a medical career at the Cleveland Clinic, is thinking only of herself. He maintains that the children should not be uprooted and moving them to Cleveland is unfair to them and unfair to him. He states that the children are the center of his life and there are few 6 Her independent source of money now is alimony and child support. 7 The mother must attend an orientation program at the Cleveland Clinic on June 18, 2008. 8 During her residency the mother will generally work 8:00 a.m. to 5:00 p.m., with some on-call responsibilities. There will be some months where she will have to work to 6:00 or 6:30 p.m., although on some of those occasions she can trade that time off to come in earlier in the morning. -7- 06-2786 CIVIL TERM children, even in intact families, who have a father who does more for them than he does. He notes that there are no guarantees the mother will complete the program she plans, and even if she does, it is unknown where she will be able to secure a position as a pathologist. When a custodial parent seeks to relocate children out-of-state, an analysis Gruber v. Gruber, must be made of the factors set forth in 400 Pa. Super. 174 (1990), which 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. Beers v. Beers, In 710 A.2d 1206 (Pa. Super. 1998), the Superior Court of Gruber Pennsylvania stated that it has consistently held that "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best Gruber interests of the child lie." As to the first 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 the child are more closely aligned with the interests and quality of life of the custodial parent.” . . . [T]here is no need . . . to show an independent -8- 06-2786 CIVIL TERM benefit, apart from that of [the moving party], flowing to the children Zalenko v. White, because of the relocation. See 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) -9- 06-2786 CIVIL TERM Both parents agreed that a career in medicine for the mother would only be put on hold while she cared for their three children during their early years. At the beginning of 2004, when the father essentially left the mother, she sought a residency which she started at the Penn State Medical Center in Hershey that September. When, unfortunately, Alexander became ill in 2005, and needed full-time care, the mother made the sacrifice of leaving her residency. This was during a period that the father was not seeing his children on a regular basis. Now the mother has secured an outstanding opportunity to pursue her delayed medical career with the potential advantage of being financially secure by practicing in the field of dertmato pathology, a profession that will allow her to work on a schedule that is most consistent with her child care responsibilities. She will be able to undertake the residency and hopefully then a fellowship that will allow her to continue to provide the structure and stability for 9 the children that they have become accustom to in her stable household. The potential advantages of this proposed move by the mother are significant, and there is every likelihood that the move will substantially improve the general quality of her planned for professional life and concomitantly the quality of the life of Eric, Alexander and Stephanie. This is not a momentary whim on the part of the mother. The integrity of her motive to pursue her medical career as proposed is sound. We do not question the motive of the father, who as of late has become a much more involved parent with __________ 9 While the father notes that there are no guarantees that the mother will fulfill her goals, it is our view, absent some untold event, that she most certainly will. -10- 06-2786 CIVIL TERM his -11- 06-2786 CIVIL TERM children, in opposing the move. Obviously, the frequency of his interaction with the children will be lessened. However, moving the children who are eight, seven and five years old, from one community to another should not have that great an impact on them, especially because we are satisfied that there is a realistic substitute visitation arrangement which will adequately foster their on-going relationship with their father. Based on the foregoing analysis, and considering all of the evidence and the best interest of Eric, Alexander and Stephanie, we will allow the mother to move them to the Cleveland area after the end of this school year. We will also provide the father with extensive periods of temporary physical custody as set forth in the following order. ORDER OF COURT IT IS ORDERED: AND NOW, this day of February, 2008, (1) Erica Rushing and Charles Gerow shall have joint legal custody of Eric Gerow, born February 2, 1999, Alexander Gerow, born December 16, 2000, and Stephanie Gerow, born December 5, 2002. (2) Erica Rushing is allowed to move Eric, Alexander and Stephanie to the Cleveland area any time after June 6, 2008. (3) Until such time as the mother moves the children to the Cleveland area, Charles Gerow shall have temporary physical custody on the same schedule that the parties now have by agreement. Additionally, during that period, if the mother is in Cleveland, she shall allow the father the opportunity to have the children. (4) Once the mother moves the children to the Cleveland area, the father shall -12- 06-2786 CIVIL TERM have periods of temporary physical custody as follows: (a) In the summer of 2008, from Saturday, June 28 until eight days before the children start school in the Cleveland area. During this period, if the mother comes to Pennsylvania, she shall on one occasion be allowed to have the children for up the three consecutive overnights. This summer schedule shall continue in the years following 2008, and shall commence on the last Saturday in June. (b) During each Easter/Spring school break, from the first full day off school to the last day off school. (c) From the day after Thanksgiving until the last day off school. (d) In even numbered years, during each Christmas school break, from December 26 through January 1. In odd numbered years, from December 23 through January 1. (e) During each school year, except as otherwise set forth above, one weekend out of every four weekends, the choice being the fathers, from Friday after school until Sunday evening, or Monday evening if Monday is a school holiday. On any one of the other three weekends in each four weekend period, if the father visits in the Cleveland area, and upon two weeks prior notice to the mother, from after school on Friday until such time as he may leave the Cleveland area on Sunday, or Monday if Monday is a school holiday. (5) Unless otherwise agreed between the parents, all exchanges of the children -13- 06-2786 CIVIL TERM shall occur at the Johnstown, Pennsylvania exit of the Pennsylvania Turnpike. (6) Each parent shall allow a reasonable amount of phone and email access between the children and the other parent. By the Court, Edgar B. Bayley, J. Diane Radcliff, Esquire For Plaintiff Nora Blair, Esquire For Defendant :sal -14- ERICA GEROW, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHARLES GEROW, : DEFENDANT : 06-2786 CIVIL TERM IN RE: CUSTODY ORDER OF COURT IT IS ORDERED: AND NOW, this day of February, 2008, (1) Erica Rushing and Charles Gerow shall have joint legal custody of Eric Gerow, born February 2, 1999, Alexander Gerow, born December 16, 2000, and Stephanie Gerow, born December 5, 2002. (2) Erica Rushing is allowed to move Eric, Alexander and Stephanie to the Cleveland area any time after June 6, 2008. (3) Until such time as the mother moves the children to the Cleveland area, Charles Gerow shall have temporary physical custody on the same schedule that the parties now have by agreement. Additionally, during that period, if the mother is in Cleveland, she shall allow the father the opportunity to have the children. (4) Once the mother moves the children to the Cleveland area, the father shall have periods of temporary physical custody as follows: (a) In the summer of 2008, from Saturday, June 28 until eight days before the children start school in the Cleveland area. During this period, if the mother comes to Pennsylvania, she shall on one occasion be allowed to have the 06-2786 CIVIL TERM children for up the three consecutive overnights. This summer schedule shall continue in the years following 2008, and shall commence on the last Saturday in June. (b) During each Easter/Spring school break, from the first full day off school to the last day off school. (c) From the day after Thanksgiving until the last day off school. (d) In even numbered years, during each Christmas school break, from December 26 through January 1. In odd numbered years, from December 23 through January 1. (e) During each school year, except as otherwise set forth above, one weekend out of every four weekends, the choice being the fathers, from Friday after school until Sunday evening, or Monday evening if Monday is a school holiday. On any one of the other three weekends in each four weekend period, if the father visits in the Cleveland area, and upon two weeks prior notice to the mother, from after school on Friday until such time as he may leave the Cleveland area on Sunday, or Monday if Monday is a school holiday. (5) Unless otherwise agreed between the parents, all exchanges of the children shall occur at the Johnstown, Pennsylvania exit of the Pennsylvania Turnpike. (6) Each parent shall allow a reasonable amount of phone and email access between the children and the other parent. -2- 06-2786 CIVIL TERM -3- 06-2786 CIVIL TERM By the Court, Edgar B. Bayley, J. Diane Radcliff, Esquire For Plaintiff Nora Blair, Esquire For Defendant :sal -4-