HomeMy WebLinkAbout92-3385 CivilTAMMY L. SCHMIEDEL,:
Plaintiff '
TODD T. NEALY, '
Defendant '
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 92-3385 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., December [ , 2000.
In this child custody case, Plaintiff mother has appealed to the Pennsylvania
Superior Court from an order of this court which declined to modify a shared
custody arrangement. The shared custody arrangement had most recently been
confirmed by an order of court entered pursuant to an agreement of the parties as
part of a divorce settlement.
The order from which Plaintiff has appealed is as follows:
[U]pon consideration of Plaintiff's Petition for
Modification of a Custody Order with respect to the parties'
children, Courtney Nicole Nealy (d.o.b. May 21, 1991) and
Hannah Elizabeth Nealy (d.o.b. November 7, 1994), and
following a hearing held on August 21, 2000, and August 24,
2000, and it appearing to the court that (1) both parents are fit,
(2) both parents desire continuing involvement with their
children, (3) both parents are seen by the children as sources of
security and love, and (4) both parents are able to communicate
and cooperate in promoting the children's best interests, and it
further appearing that the children are prospering under the
present shared custody arrangement, which was negotiated by
the parties, the petition is denied. See In re Wesley J.[K]., 299
Pa. Super. 504, 445 A.2d 1243 (1982).
The bases for Plaintiff's appeal from the order have been expressed in her
statement of matters complained of on appeal as follows:
1. Did the trial court abuse its discretion by failing to
award Plaintiff-Mother custody of the parties' daughters,
Courtney (dob: 05/21/91) and Hannah (dob: 11/07/94) during
the school year?
Suggested Answer: Yes.
2. Did the trial court abuse its discretion by failing to make
specific findings regarding the best interest of the children
prior to denying Plaintiff-Mother's petition to modify the
existing custody order?
Suggested Answer: Yes.
3. Did the trial court abuse its discretion by denying
Plaintiff-Mother's petition to modify the existing custody order
on the basis that the parties previously had agreed to share
physical custody?
Suggested Answer: Yes.
4. Does the record support the trial court's finding that the
parties are able to communicate and cooperate in promoting the
children's best interests?
Suggested Answer: No.
5. Did the trial court err by overruling Plaintiff-Mother's
objections to Defendant-Father's questions regarding whether
she had sexual relations with her now-husband prior to the
parties' separation in 19987
Suggested Answer: Yes.
6. Did the trial court err by overruling Plaintiff-Mother's
objections to Defendant-Father's questions regarding whether
she had sexual relations with her now-husband prior to the
parties' divorce in 1999?
Suggested Answer: Yes.
7. Did the trial court err by overruling Plaintiff-Mother's
objections to Defendant-Father's questions regarding marital
misconduct which occurred prior to entry of the custody order
at issue?
Suggested Answer: Yes.
8. Did the trial court err by overruling Plaintiff-Mother's
objections to Defendant-Father's questions regarding Mother's
income?
Suggested Answer: Yes.
9. Did the trial court err by overruling Plaintiff-Mother's
objections to Defendant-Father's questions regarding Mother's
business contracts?
Suggested Answer: Yes.
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10. Did the trial court err by overruling Mother's
objections to Defendant-Father's questioning regarding the
parties' prior custody agreement?
Suggested Answer: Yes.
11. Did the trial court err by overruling Mother's
objections to Defendant-Father's testimony regarding the
parties' prior custody agreement?
Suggested Answer: Yes.
12. In a custody case, is it a per se abuse of discretion for
the trial court to impose a two-hour limit on each party's
presentation of her/his case?
Suggested Answer: Yes.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is Tammy L. Schmiedel (formerly Nealy), 34; she resides at 1265
Fern Road, Harrisburg, Dauphin County, Pennsylvania.~ Defendant is Todd
Nealy, 35; he resides at 18 Chestnut Drive, Carlisle, Cumberland County,
Pennsylvania.2
The parties were married on March 24, 1990.3 Two children were born of
the parties' marriage: Courtney Nicole Nealy (d.o.b. May 21, 1991) and Hannah
Elizabeth Nealy (d.o.b. November 7, 1994).4
The parties separated on March 20, 1998.5 They were divorced on
February 9, 1999.6 Plaintiff mother remarried on February 16, 2000; her husband
is Brian Schmiedel.7
t N.T. 101, Hearing, August 21, 2000, and August 24, 2000 (hereinafter N.T. ~).
2N.T. 101.
3 N.T. 102.
4Id.
5Id.
6Id.
7Id.
During the parties' marriage, Plaintiff mother and her present husband
became romantically involved. However, she did not disclose this fact to
Defendant until several months after she had left the marital home;8 at the time of
separation, Defendant was under the impression that a reconciliation was a
possibility.9 Following the separation Defendant agreed with Plaintiff to entry of
an order providing for shared physical custody of the children.l°
The resultant order, dated July 13, 1998, provided for shared custody as
follows:
A. The Mother, Tammy L. Nealy, and the Father, Todd T.
Nealy, shall enjoy shared legal custody of Courtney Nicole
Nealy, born May 21, 1991; and Hannah Elizabeth Nealy, born
November 7, 1994.
B. Physical custody shall be handled on a shared
arrangement under the following alternating schedule over a
two-week period: one parent shall have the children from
Thursday morning through Monday morning and the following
Tuesday morning through Thursday morning--the other parent
shall have the children from Monday morning through Tuesday
Morning and the following Thursday morning through Monday
morning. The schedule shall alternate as provided above over
every two weeks.
C. Each parent shall have an opportunity to have at least
seven (7) days of consecutive vacation with the minor children
during the summer months, this time to be designated as agreed
by the parties.~ ~
This represented a 50/50 shared custody arrangement.
8 N.T. 29, 124. The relationship was disclosed to Defendant father during a deposition in June of
1998. N.T. 124.
o N.T. 124-125.
l0 This agreement was reached at a custody conciliation conference held on June 18, 1998. See
Conciliation Conference Summary Report, dated June 22, 1998.
n Order of Court, July 13, 1998, para. 2.
4
Transportation for a given exchange of custody was, under the agreed-upon
order, to be the responsibility of the parent receiving custody.~2 Under this
arrangement, the parties' school-age child continued to attend school in the
Cumberland Valley School District.~3 The parties' younger child was
subsequently enrolled in this school district as well.~4 The agreed-upon order also
directed the parties and children to submit to a custody evaluation for use in any
further agreement as to custody or future litigation.
In September of 1998, six months after leaving the marital home, Plaintiff
moved from Cumberland County to Dauphin County, Pennsylvania.~5 Dauphin
County was the county in which Mr. Schmiedel lived, with his wife and children. ~6
The following year, in February of 1999, another agreed-upon order was
entered by the court, reaffirming the shared custody arrangement,l? This order
incorporated the terms of a marital settlement agreement between the parties.~8
The agreement provided for a continuation of the shared custody arrangement,
eliminated the custody evaluation which had been previously agreed upon, and
provided for the children's education in the Cumberland Valley School District:
20. CUSTODY.
The parties will continue to share legal and physical
custody of the children (Courtney, DOB 5/21/91 and Hannah
DOB 11/7/94) pursuant to the Custody Order of .luly 13, 1998.
The parties agree to forego a custody evaluation. Shared
custody will contemplate shared time on the children's
~2 Id., para. 3. Under the agreed-upon order, the right of the parties to refer the matter to the
custody conciliation process following a custody evaluation, without prejudice, was preserved.
Id., paras. 1, 4.
~3 N.T. 36, 51.
14 N.T. 131.
~5 N.T. 14, 36-37.
~6 N.T. 29, 31, 34-35, 101.
~7 N.T. 49-50; Order of Court, February 9, 1999, Nealy v. Nealy, No. 2071 Civil 1998 (Divorce
Decree, incorporating terms of parties' marital settlement agreement).
~8 Id.
birthdays and holidays (Easter, Memorial Day, July 4th, Labor
Day, Thanksgiving and Christmas). The children will utilize
the Chestnut Drive property for school enrollment purposes.
The parties may, from time to time, modify the shared physical
custody arrangement with a view to accommodating the
children's schedules and maintaining the children's close and
meaningful relationship with the other parent.19
Plaintiff agreed to this arrangement while harboring an intention to obtain a
custodial change after a divorce had been secured.2° Three months later, in May
of 1999, Mr. Schmeidel left his wife and children and moved in with Plaintiff.21
In December of 1999, Mr. Schmeidel and his wife were divorced?
On February 16, 2000, as noted previously, Plaintiff and Mr. Schmeidel
were married.23 On February 28, 2000, Plaintiff filed the petition to modify
custody of the parties' children which is the subject of this opinion. The purpose
of the petition was to secure an award of primary physical custody for Plaintiff.TM
In March, 2000, Plaintiff and Mr. Schmeidel moved into the former marital
residence of Mr. Schmeidel and his wife, in Dauphin County.25 They presently
reside at that address.26
The bases for Plaintiff's petition for modification of custody, as expressed
in the petition, were (1) that "the parties [were] unable to cooperate even
minimally regarding their daughters ... as required under the test for shared
custody enunciated in In re Wesley J.K., 299 Pa. Super. 504, 445 A.2d 1243
(1981)," (2) that "Defendant [father] generally does not provide care for the
~9 Defendant's Exhibit 2, para. 20, Hearing, August 21
(hereinafter, 's Exhibit ~).
2o See N.T. 22-23, 52-53.
2t N.T. 31.
22 N.T. 33.
23 N.T. 33, 102.
24 N.T. 13, 118; Plaintiff's Exhibit 1 (proposed order).
25 N.T. 35.
26 N.T. 9, 35.
and 24, 2000 (emphasis added)
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children during his periods of custody," instead leaving "them in the care of his
grandmother and other third parties, despite Plaintiff's pleas that he not do so," (3)
that Plaintiff's prior disavowal of the need for a custody evaluation had been
premised upon her "hope that, once the parties were divorced, their disagreements
over parenting would subside," and (4) that "the current schedule ha[d]
compromised the children's emotional and psychological well-being and
development.''27 A custody conciliation conference held on May 25, 2000,
between the parties and the Cumberland County Custody Conciliator proved
unsuccessful in resolving the parties' differences?
In order to adjudicate Plaintiff's petition (which if granted would involve
enrollment of the children in a school district in Dauphin County) prior to
commencement of the school year,29 and notwithstanding an extremely congested
calendar, the court scheduled a hearing on the petition for August 21, 2000.30 It
granted the request of Plaintiff mother for appointment of a custody evaluator over
the objection of Defendant father,3~ and accommodated Plaintiff further by
scheduling a period for her presentation of the custody evaluator's testimony over
a lunch hour on August 24, 2000, after the evaluator indicated his unavailability
for testimony on August 21, 2000.32
Prior to commencement of the hearing on August 21, 2000, the court
advised counsel that its schedule could accommodate a two-hour presentation of
evidence from each side? Neither counsel initially objected to this time
constraint, nor did Plaintiff's counsel thereafter interpose an objection to it;
27 Plaintiff's Petition for Modification of a Custody Order, filed February 28, 2000.
28 Custody Conciliation Conference Report, dated June 1, 2000.
29 Id., para. 4.
30 Order of Court, June 8, 2000, para. 1.
3~ Id., para. 2.
32 Order of Court, August 18, 2000.
33 See N.T. 4, 73.
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however, during the hearing Defendant's counsel complained "for the record" that
Defendant was not being afforded enough time to present his case?
In response to this objection, the court conferred with counsel, capitulated,
and allotted an additional half hour to each side? Plaintiff's counsel advised that
she appreciated the additional time, but would not need it.36 The transcript from
the hearing ultimately comprised 200 pages; the record, in addition to transcribed
testimony, included as exhibits a nine-page, single-spaced report of the custody
evaluator, numerous pictures of Plaintiff's residence and its environs, excerpts
from the parties' marital settlement agreement, and other documents.
Witnesses who testified on behalf of Plaintiff mother at the hearing were a
friend of Plaintiff,37 Plaintiff,38 Plaintiff's present husband,39 a tutor/babysitter
employed by Plaintiff,4° and the custody evaluator.4~ Their testimony comprised
about 80 percent of the transcript. Defendant testified on his own behalf.42
In concluding that the best interests of the children did not require a change
in the existing shared custody arrangement, the court, in its capacity as trier of
fact, found the following facts to have been demonstrated by the evidence. First,
both parents were fit.43 In this regard, Defendant stipulated that Plaintiff was a fit
mother,44 Plaintiff testified that, basically, she regarded Defendant as a "good
34 N.T. 133-34.
35 N.T. 134.
36 N.T. 135.
37 N.T. 5-8.
38 N.T. 8-104.
39 N.T. 104-09.
4o N.T. 109-17.
41 N.T. 151-96.
42 N.T. 121-45.
43 N.T. 171.
44 N.T. 5.
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parent,''45 and the custody evaluator opined that both parties were fit parents;46
minor differences in parenting philosophies did not, in the court's view, rise to the
level of parental unfitness of either party.47
Second, both parents desired continuing involvement with their children.
This fact was evident from their respective testimonies, and the custody evaluator
opined that this was the case.48 Third, both parents were seen by the children as
sources of security and love. Defendant stipulated that "both parties love their
children and ... the children love both of them,''49 Plaintiff testified that Defendant
"loves the children, and they love him,''5° and the custody evaluator testified that
the children "enjoy their time with both of these parents,''5~ and opined that "both
parents are seen by the children as sources of security and love.''52
Fourth, both parents were able to communicate and cooperate in promoting
the children's best interests. The children themselves believed that their parents
still had positive feelings toward each other? In addition, the custody evaluator
opined that, "[c]urrently, the parents work fairly well together in terms of dealing
with the children's behavior,''54 that for the most part the parents had been able "to
communicate and cooperate" in promoting "the best interest of these children,''55
45 N.T. 26.
46 N.T. 171.
47 See, e.g., N.T. 24-26.
48 N.T. 171.
49 N.T. 5.
5o N.T. 26.
5! N.T. 195.
52 N.T. 171.
53 N.T. 163-64.
54 N.T. 165.
55 N.T. 172.
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and that, in general, from the standpoint of the children "the [existing] joint
custody or the shared custodial arrangement has worked well.''56
The evidence also demonstrated the existence of other factors militating in
favor of the continuation of the shared custody arrangement. These included the
following: (a) the fact that the arrangement had been agreed upon by the parties on
two separate occasions;57 (b) the fact that it was still "work[ing] well" more than
two years after its inception,58 the children were free of any significant behavioral,
emotional or social problems;59 and the children were "thriving" under the
arrangement,6° according to the custody evaluator; (c) the fact that Plaintiff placed
her own interest above the children's in moving to Dauphin County where Mr.
Schmeidel lived,6~ given the negative effect that the move had, according to the
custody evaluator, upon the shared custody arrangement;62 (d) the fact that
Defendant placed the children's interests above his own in changing the hours of
his work when he discovered that Plaintiff objected to his grandmother's caring
56 N.T. 164.
57 N.T. 22, 49.
58 N.T. 164, 173.
59 N.T. 165.
60 N.T. 192.
61 In this regard, the court found PlaintiWs testimony as to the motivation for her move less than
persuasive. At one point in her testimony, she stated that complaints about Defendant in
connection with a commercial cleaning business which they operated during the marriage
influenced her decision to move her share of the business to Dauphin County. N.T. 98. At
another point, however, she stated that the operation the business did not require her relocation to
Dauphin County [N.T. 87], and this statement was corroborated by the extent of her business
which remained in Cumberland County [67, 74-75, 77]. At another point, she seemed to suggest
that her relocation to Dauphin County had been financially motivated. N.T. 83. However, her
business subsequently grossed about $350,000.00 per year, producing a net income to her of
about $100,000.00 per year [N.T. 84-85], and she testified that she had not wanted to buy a house
in Cumberland County when she moved to Dauphin County [N.T. 83].
Given the events that preceded and followed the relocation, and without in any way
presuming to judge the merits of the relationship, the court was of the view that Plaintiff had
probably moved to Dauphin County to be nearer to Mr. Schmeidel.
62 N.T. 179.
10
for the children in his home when they were awake,63 and in refraining from
initiating a claim for child support against Plaintiff notwithstanding their
respective yearly incomes of $100,000.00 (Plaintiff) and $28,000.00
(Defendant);64 (e) the fact that Plaintiff had, in the court's view, not substantiated
the averment in her petition to modify that she had pleaded with Defendant for
him to be in the children's presence more;65 (f) the fact that the older child
preferred the Cumberland Valley School District, which she had been attending
for several years, to another district;66 (g) the fact that the parties had selected the
Cumberland Valley School District as the venue of the children's education,
notwithstanding Plaintiff's residence, at the time, in Dauphin County;67 (h)the fact
that, in terms of family members with whom there was contact, Dauphin County
was the residence only of Mr. Schmeidel and his children,68 whereas Cumberland
County was the residence of the subject children's paternal grandparents, as well
as the children's paternal great grandmother;69 (i) the fact that the relationship
between the children and their paternal grandparents was a "good and close" one,
according to Plaintiff;?° and (j) the fact that the children's paternal great
grandmother had provided daycare for the first year and a half of the older child's
life, pursuant to the parties' agreement,TM and was now providing nightcare for
both children in Defendant's home when they were in bed and Defendant was at
work.TM
63 N.T. 122.
64 N.T. 85, 127.
65 N.T. 122.
66 N.T. 155.
67 Defendant's Exhibit 2, para. 20.
68 N.T. 57-58.
69 N.T. 58-59.
70 N.T. 58. The children's maternal grandparents live in Delaware State. N.T. 57.
7~ N.T. 58.
72 N.T. 59, 122.
11
Factors supporting a change in the existing arrangement included an
expression by the parties' nine-year-old to the custody evaluator of a desire to
spend more time with Plaintiff (whom she regarded as the parent who was less
strict and more fun).73 This child was, however, "comfortable in both
households,''74 her younger sister was "equally enthusiastic about both parents,''75
and neither child wanted to leave the custodial parent at the times of custody
exchanges?
A second
recommendation
factor tending to support Plaintiff's position was the
of the custody evaluator 'that the schedule be changed to
eliminate "one Thursday overnight" during the school year from Defendant's
custodial periods.?? The basic reasons for this recommendation were the
preference of the older child to spend more time with Plaintiff and a perception on
the part of the evaluator that Defendant had a negative attitude toward Plaintiff.TM
On the other hand, the custody evaluator, whose professional guidance as
an expert witness in child custody cases has been of inestimable value to the court
over many years,79 stated that, in his view, "when appropriate, shared custody is
by far the best arrangement for children?so He was sufficiently comfortable with
the concept of shared custody between the parties in the present case that, upon
reflection, he felt that his proposal should be regarded as a species of, and not a
departure from, a shared custody arrangement,si Furthermore, he believed that
73 See Plaintiff's Exhibit 5 (custody evaluation report), at 9; N.T. 156.
74 N.T. 161.
75 N.T. 163.
76 N.T. 90, 128.
77 N.T. 195.
78 N.T. 185-86.
79 The custody evaluator was Arnold T. Shienvold, Ph.D.
80 N.T. 172.
si N.T. 196.
12
Defendant had been successful in not communicating his negative feelings toward
Plaintiff to the children?
At the conclusion of the second day of the hearing on August 24, 2000,
Plaintiff's counsel reminded the court of the importance of a prompt decision due
to the impending commencement of the school year on the following Monday.83
After careful consideration of the evidence presented at the hearing on Plaintiff's
petition to modify custody, the court found itself of the view that a continuation of
the existing shared custody arrangement was in the best interests of the children.
The order quoted above, from which Plaintiff has appealed, was entered on
August 25, 2000.84
Statement of law.
DISCUSSION
With respect to custody, it has been said that "the
guiding polestar in a custody matter is what is in the best interests of the child."
Frank & Gale, Pennsylvania Family Practice Manual §9.02(B), at 328 (1990).
It is settled law in Pennsylvania that a custody order is subject
to modification without proof of substantial change in
circumstances when it is shown that change is in the best
interests of the child. Whenever a court is called upon to
address the best interests of a child, traditional burdens or
presumptions such as substantial change in circumstances, the
fitness of one parent over another, or the tender years doctrine
must all give way to the paramount concern; the best interests
of the child. In determining best interests of the child, a court
must consider all factors that legitimately affect the child's
physical, intellectual, moral and spiritual well-being.
Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa. Super. Ct. 1998)(citations omitted).
Although there is no presumption favoring shared custody in
Pennsylvania,85 a particularly strong situation for the decreeing of a shared
custody arrangement has been said to be presented where
82 N.T. 171.
83 N.T. 200.
84 The order, misdated August 23, 2000, was entered on August 25, 2000.
13
(1) both parents are "fit," (2) both desire continuing
involvement with their child, (3) both parents are seen by the
child as sources of security and love, and (4) both parents are
able to communicate and cooperate in promoting the child's
best interests ....
In re WesleyJ. K., 299 Pa. Super. 504, 517,445 A.2d 1243, 1249 (1982).
"[C]ourts are," of course, "reluctant to disturb existing custody
arrangements which have satisfactorily served the best interests of the child."
Wiseman v. Wall, 718 A.2d 844, 846 (Pa. Super. Ct. 1998).
With respect to the admission of evidence, the general rule is that the
admissibility of evidence is a matter addressed to the sound discretion of the trial
court. Commonwealth v. Claypool, 508 Pa. 198, 203-04, 495 A.2d 176, 177-78
(1985) (citing Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-
800 (1972)).
A prerequisite to the admission of evidence is relevancy. Pa. R.E. 402; see
Commonwealth v. A.W. Robl Transport, 747 A.2d 400, 404 (Pa. Super. Ct. 2000).
Evidence is relevant if it has "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Pa. R.E. 401; see
Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). "Although
relevant, evidence may be excluded if its probative value is outweighed by the
danger of unfair prejudice .... "Pa. R.E. 403.
In a custody case, a parent's liaison with another person is relevant to the
extent that it tends to affect or explain the parent/child relationship? Similarly, an
understanding of a parent's financial circumstances can be helpful to an
appreciation of his or her capabilities and motives in relation to a child?
85 In re WesleyJ. K., 299 Pa. Super. 504, 514, 445 A.2d 1242, 1248 (1982).
86 ConstantA. v. Paul C.A., 344 Pa. Super. 49, 66,496 A.2d 1, 10 (1985).
87 See, e.g., Costello v. Costello, 446 Pa. Super. 371,666 A.2d 1096 (1995).
14
Furthermore, prior agreements of parents as to custody bear upon the plausibility
of subsequent positions taken as to the appropriateness of the terms adopted,sa
With respect to the effect of expert testimony in custody litigation, it is well
settled that a trial court is "obligated to consider the testimony of the ... experts,
but [is] not obligated to delegate to [the] experts the responsibility of making its
decision." Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453,485 A.2d 1166, 1169
(1984).
With respect to the amount of time dedicated by a trial court to a particular
case, it is also well settled that a certain amount of discretion resides with the court
in terms of the duration of proceedings before it. See, e.g., Commonwealth ex tel.
Friedman v. Friedman, 223 Pa. Super. 66, 297 A.2d 158 (1972) (length of
arguments); Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977 (1992) (cross-
examination); see also Posel v. Redevelopment Authority of City of Philadelphia,
72 Pa. Commw. 115, 122, 456 A.2d 243, 247 (1983); 38 P.L.E. Trial 21, at 29
(1961). In addition, as a general rule, in the absence of an objection an issue as to
procedure before a trial court will be deemed waived. See, e.g., Travitzky v.
Travitzky, 369 Pa. Super. 65, 534 A.2d 1081 (1987); Weiner v. Lee, 669 A.2d 424
(Pa. Commw. Ct. 1995), appeal denied, 547 Pa. 734, 689 A.2d 237 (1997).
Application of law to facts. As the order of court which was entered in this
case provided, the court (a) found that the circumstances which would justify
shared custody between the parties with respect to their children had been
demonstrated, (b) concluded that the children were prospering under the existing
shared custody arrangement, and (c) denied Plaintiff's petition to change the
arrangement by awarding primary physical custody to her. Plaintiff's position that
the order was somehow unclear as to whether the court felt that the best interests
of the children would be served by)instead, discontinuing the existing arrangement
88 See, e.g., Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa. Super. 447, 344 A.2d 613
(1975).
15
and awarding primary physical custody to her seems, to the court, to be without
reasonable basis.
As indicated by the foregoing statement of facts, the court was of the view
that the factual allegations of Plaintiff's petition to modify were largely incorrect.
As further indicated, the court believed that, on balance, the factors militating in
favor of a continuation of the existing shared custody arrangement outweighed
those favoring a change, when viewed in the context of the children's best interest.
With respect to Plaintiff's contention that the record did not support the
court's finding that the parties were able to communicate and cooperate in
promoting the children's best interests, sources in the record which supported this
proposition have been cited in the Statement of Facts. See text accompanying
notes 53-56 supra.
With respect to the allegedly erroneous admission of evidence by the court,
it may be noted that Plaintiff's relationship with Mr. Schmeidel (which caused her
to move from the marital residence and, eventually, to another county) and the
parties' finances (which reflected upon Plaintiff's motivation in relocating to
Dauphin County and upon Defendant's forbearance in the area of child support)
tended to strengthen or weaken the parties' positions on issues such as their
willingness to place the children's interests above their own. These areas were
thus of some relevance, and the admission of evidence regarding them did not, in
the court's view, represent an abuse of discretion.
With respect to the court's allegedly improper consideration of the parties'
prior agreement(s) for shared custody (which included enrollment of the children
in the Cumberland Cefih~y S~hool District), it is believed that Plaintiff's approval
of the existing custodial arrangement at an earlier time was a proper subject of
consideration in weighing the plausibility of her subsequent attack on the same
arrangement. The agreements were thus deemed to be relevant to the issues
presented, and were among numerous factors which contributed to the decision.
16
Finally, with respect to the amount of time allotted for the hearing, several
factors tend to weaken Plaintiff's position that the order resulting from the hearing
was void or voidable due to time constraints imposed upon the parties. These
include the discretion accorded trial courts to reasonably determine the duration of
proceedings before them, the extent of the record developed in the present case,
Plaintiff's failure to preserve the issue by objecting to the procedure, and
Plaintiff's expressed lack of any need for additional time when it was offered by
the court.
For the foregoing reasons, it is believed that the custody order of court from
which Plaintiff has appealed was properly entered.
Theresa Barrett Male, Esq.
115 Pine Street
Harrisburg, PA 17101
Attorney for Plaintiff
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant
17