Loading...
HomeMy WebLinkAbout2004-5723 Civil ROBBIE D. LUZIER, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : : : DEE A. LUZIER, : Defendant/Appellee : No. 04-5723 CIVIL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 24, 2008 - Appellant, Robbie D. Luzier, has filed an appeal to the Superior Court of Pennsylvania 1 following a Temporary Custody Order entered April 17, 2008. This opinion is written pursuant 2 to Pa. R.A.P. 1925(a). Appellant’s bases of appeal are as follows: I.Whether the trial court abused its discretion in granting relief beyond the scope of the Pennsylvania Rules of Civil Procedure and the Domestic Relations Code. II.Whether the conclusions of the Trial Court were unreasonable in light of the sustainable findings at trial, and the lack of proffered evidence on behalf of both parties relating to the best interests of the children. III.Whether the Temporary Custody Order is manifestly unreasonable as shown by the evidence of record since it grants Defendant physical custody without establishing the best interests of the children. IV.Whether each finding of fact is supported by competent evidence. V.Whether the Plaintiff’s due process rights were violated by the custody hearing when no request for hearing was properly made under the rules and the Plaintiff was not prepared to present evidence dealing with the best interests of the children. 1 See Order of Court, Apr. 17, 2008. 2 See Statement of Matters Complained of pursuant to Pa. R.A.P. 1925(b), filed May 23, 2008. PROCEDURAL HISTORY On February 12, 2007, this Court entered an Order directing shared legal custody by Robbie (Appellant) and Dee (Appellee) Luzier of Zachary, Cody, and Casey Luzier. Primary physical custody was awarded to Appellant with visitation rights to Appellee. On June 26, 2007, Appellee (mother) filed a petition for contempt because Appellant was not cooperating with Melinda Eash, reunification counselor, and was detrimentally interfering with the children’s relationship with their mother. On July 31, 2007, Appellee filed a Petition for Emergency Relief, and an Order was entered on August 17, 2007 scheduling a hearing on August 24, 2007. On August 24, 2007, Appellant admitted he was in contempt for violation of the February 12, 2007, Order of this Court. He was fined $500.00 and placed on 6 months probation. On October 25, 2007, Appellant filed an Emergency Petition to Suspend Custody. On October 29, 2007, Appellee filed an Answer to the Emergency Petition to Suspend Custody with New Matter. On October 31, 2007, this Court issued an Order denying Appellant’s Petition for Emergency Relief. On November 1, 2007, Appellee filed Petition for Contempt, which Appellant answered on November 20, 2007. On November 19, 2007, this Court issued an Order scheduling a hearing on November 30, 2007, on the Petition for Contempt. Hearing on the matter was conducted on two days, November 30 and December 21, 2007, and consisted of 332 pages of testimony. On April 17, 2008, this Court issued an order finding Appellant in contempt and granting a temporary change in physical custody to which Appellant now appeals. STATEMENT OF FACTS Dee and Robbie Luzier were married in October 1991 and separated in January 2005. Appellee has filed numerous contempt complaints on the bases that Appellant has interfered with 2 Appellee’s right to see and communicate with her children and that Appellant’s statements and actions have negatively affected the Luzier children’s perception of their mother. On February 12, 2007, this Court granted shared legal custody by Robbie and Dee Luzier of their minor children Zachary, Cody, and Casey Luzier. Dee Luzier, Appellee, was granted visits with minor children Cody and Casey under the supervision of Melinda Eash during office visits. Zachary Luzier was excused from supervised visit sessions with Ms. Eash until the end of school year 2006-2007. The Parties agreed that any modification to the custodial schedule would only be done with mutual agreement of Robbie Luzier, Dee Luzier, and Melinda Eash. The Parties agreed to cooperate with Ms. Eash and her recommendations as to telephone contact between mother and minor children Casey and Cody, and her recommendations for modifications to the supervised visits within the therapeutic setting. Contrary to this agreement, Appellant took the children to see another therapist, Mary Jo Devlin, without consulting with Appellee. Appellant has previously been found in contempt for violating this Court’s orders. Appellee has a history of mental illness and has attempted to overdose on prescription 3 medication on four occasions. In addition to her marital conflicts, Appellee has faced major 4 stress in recent years with the death of her mother in 1997 and the death of her father in 1999. Appellee has participated in treatments recommended by her psychiatrist, Dr. Altaker, and has 5 shown marked improvement in recent years. Dr. Altaker testified that Appellee’s mood has 6 much improved and that she has been particularly stable since mid-2006. Appellee has been employed as a retirement administrator for the Public School Employees Retirement System for 3 Notes of Transcript held Dec. 21, 2007, p. 17 (hereinafter “N.T. Dec. 21, 2007, __”). 4 N.T. Dec. 21, 2007, 18 5 N.T. Dec. 21, 2007, 7 6 N.T. Dec. 21, 2007, 7 3 7 20 years and is doing well at work and is respected at her job. Dr. Shienvold’s Custody Evaluation reports that Appellee’s most recent work evaluation shows that she is performing 8 above average and doing outstanding work in all areas. This Court found that the children are victims of extreme alienation; that Appellant (father) has not supported reunification; and that Appellant has actively contributed to the alienation of the children from their mother. This Court further found that it is in the best long term interests of the children to have some reunification with their mother. It must be understood that this mother has barely seen her children since before March 10, 2006. Appellant has never complied with the spirit of this Court’s orders and as such has been a hindrance to the reunification necessary for the future well-being of the children. Appellant’s statements and actions are detrimental to the reunification process. Accordingly, the Court found it appropriate to temporarily modify the custody arrangement by awarding temporary physical custody of Cody to Appellee, and temporary physical custody of Zachary and Casey to the mother’s sister and her husband. DISCUSSION Pennsylvania law is clear that the primary consideration in any child custody proceeding is to determine the best interests of the child. Jones v. Jones, 884 A.2d 915, 917 (Pa. Super. 2005). Appellant, the children’s father, has been unsupportive of the reunification process and has negatively influenced the children with various actions toward Appellee. For example, counselor Melinda Eash expressed concerns that Appellant gave the children a cell phone to take 9 into their counseling sessions. Appellant provided children with the cell phone to call their 7 N.T. Dec. 21, 2007, 23 8 Resp. Exhibit 1, p. 17 9 Notes of Transcript held Nov. 30, 2007, p. 185 (hereinafter “N.T. Nov. 30, 2007, __”). 4 10 father if they didn’t like something that was going on in the session. Appellant has also modeled extremely inappropriate behavior to his children such as spraying air freshener on Appellee and calling her a liar in front of the children when he accused her of lying about 11 quitting smoking. Reunification between the mother and the children is critical. The father has been unsupportive of the reunification process and the relationship between the mother and children is severely damaged. Dr. Arnold Shienvold stated that “I know the longer we delay, at least two of these children, Zachary and Casey, who are so severely alienated from their mom that there is 12 some question if anything is going to change that.” Dr. Shienvold goes on to state “I don’t think he (Appellant) has an understanding of how bad this can be for his kids. Because not only are we worried about the estrangement, but the other components of this that worry me is that they are not learning in this process to work through a problem with a parent and get past it. They are learning to do a parentectomy. They are learning to just get rid of the person they don’t 13 like.” In his Custody Evaluation, Dr. Shienvold reports that “the literature and research are clear with respect to the importance of having on-going, frequent and meaningful contact with each parent following a separation or divorce. Children who have quality relationships with both parents demonstrate higher levels of academic achievement, greater emotional adjustment and 14 less behavior problems.” We agree that it is critical for the children to maintain a positive relationship with their mother. The future well-being of the children depends heavily on some reunification with their mother. 10 N.T. Nov. 30, 2007, 186 11 Resp. Exhibit 1, p. 21 12 N.T. Nov 30, 2007, 138 13 N.T. Nov. 30, 2007, 146 14 Resp. Exhibit 1, p. 23 5 We find Dr. Shienvold’s testimony convincing and further supportive of Appellant’s lack of efforts toward reunification. In his testimony, Dr. Shienvold states that “one of my fears in that entire situation was that Rob would not be supportive of the process because he had such a negative perception of Dee. Things like the boys being so disrespectful and so out of control with their mom. That he could rationalize that it was okay for them to be vulgar with her or to be so 15 aggressive with her was not a good sign for me.” He further states that the father “…appears to have a very rigid belief as to what the cause of this is. He accepts virtually no responsibility for the children’s estrangement from their mom 16 and blames it entirely on their mom.” He notes that the children “show characteristics of 17 significantly alienated children.” Dr. Shienvold’s report also notes that the disrespect and anger that the boys are 18 expressing towards their mother coincides with the shared custodial agreement, and while Dee’s emotional problems have contributed to the children’s uncertainty about their mother, Robbie’s attitudes and behavior towards Dee have exacerbated the children’s negative feelings 19 about their mother. Accordingly, we find that Appellant’s influence on the children is harmful to the children’s relationship with their mother, and therefore will be harmful to the individual children as they develop. The best interests of the children at this time are served by a temporary change in primary physical custody as set forth in this Court’s order of April 17, 2008. On August 24, 2007, the Father admitted that he was in contempt of the existing Order of Court regarding his children’s counseling. He was fined $500.00 and placed on 6 months supervision. At that time, the Court made it extremely clear to him that he was to comply with 15 N.T. Nov. 30, 2007, 133 16 N.T. Nov. 30, 2007, 135-136 17 N.T. Nov 30, 2007, 136 18 See Resp. Exhibit 1, p. 20 19 See Id., p. 20 6 the Order of Court regarding counseling for his children and his co-parenting counseling. The Court asked counsel to prepare an agreed upon schedule for counseling and this schedule was made an Order of Court dated August 30, 2007. Within 6 weeks and without any permission from Mother, Appellant took the three children to the office of Mary Jo Devlin. Although Ms. Devlin is not a licensed psychologist, but a family therapy counselor, nonetheless, on the first 20 visit she “assessed each boy to be suffering from post traumatic stress disorder.” This diagnosis, of course, was in response to the Father telling her that he wanted her to address his sons’ court ordered visitation with their Mother. We find Mary Jo Devlin’s testimony and diagnosis of the children with Post Traumatic Stress Disorder (PTSD) during a single consultation totally unconvincing because she has had such limited time with the children. She did not conduct a social history and did not speak with the children’s mother or other therapists familiar with the family. Ms. Devlin diagnosed the children with PTSD after asking the children to produce and rate on a scale of 1 to 10 a list of 21 events they considered traumatic. Any event which the boys self reported to be above a 5 was considered a sign of PTSD and qualified the children for Ms. Devlin’s recommended treatment of Eye Movement Desensitization Reprocessing (EMDR), a supposed effective treatment for 22 PTSD. The lists made by the children were remarkably similar, which is not surprising given the fact that Ms. Devlin told the children to complete the lists at home and bring them back for their 23 next visit. In fact, Ms. Devlin testified that the lists submitted to the Court at the 20 N.T. Nov. 30, 2007, 64 21 N.T. Nov. 30, 2007, 64 22 N.T. Nov. 30, 2007, 65 23 N.T. Nov. 30, 2007, 73-74 7 November 30, 2007, hearing were redone for the hearing because she could not read her notes 24 from the sessions. Ms. Devlin said she asked Appellant to have the boys rewrite their lists for 25 the hearing. While this Court is not denying that the children may in fact be upset about certain events, we find the method of evaluation by Mary Jo Devlin entirely ineffective and simply tailored to meet Appellant’s objective of keeping the children from seeing their mother. The lists made by the children were clearly influenced by their father’s input and negative views of their mother. It was particularly inappropriate and biased for Ms. Devlin to ask father to have the children rewrite the lists specifically for the hearing. Furthermore, we are not convinced that the EMDR treatment recommended by Ms. Devlin is appropriate for the Luzier children. This form of treatment involves a patient following a wand or a therapist’s finger rapidly with their eyes while the therapist relays the traumatic event to the patient. This experience supposedly helps reduce the level of trauma for 26 the patient. Ms. Devlin uses hand taps instead of eye movements with children. The patient sits in a chair with a pillow on their lap and Ms. Devlin taps their hands alternatively while they 27 think of a safe place, and then she relays the reported disturbing images to them. Ms. Devlin claims that in one such session of therapy with this treatment, the boys’ distress level decreased from 10 to 5 on various events. We hardly think that a single session could produce instant success and find this claim further evidence that Ms. Devlin is simply supporting the father’s proven intent to prevent reunification through more objective forms of therapy. We also find it unacceptable that Ms. Devlin claims not to have had time to do an assessment to determine if the children were alienated, when alienation is common in custody conflicts. 24 N.T. Nov. 30, 2007, 93 25 N.T. Nov. 30, 2007, 93 26 N.T. Nov. 30, 2007, 80 27 N.T. Nov. 30, 2007, 81 8 Appellant claims that this Court abused its discretion by granting relief beyond the scope of the Pennsylvania Rules of Civil Procedure. We maintain that a temporary change in custody is always within the court’s discretion if necessary for the best interests of the child. This Court relied on Steele v. Steele, 545 A.2d 376 (Pa. Super. 1988), where our Superior Court upheld the trial court when it denied appellant’s petition for contempt and instead issued a new visitation order. The Court recognized that the trial court’s temporary modification to a visitation order was appropriate when circumstances required such action for the best interests of the child, even when appellant had not filed petition for modification. See Steele, 545 A.2d at 378. Under the special relief rule, a court may, under appropriate circumstances, temporarily modify a custody or visitation order when it is in the best interests of the child. Pennsylvania Rules of Civil Procedure 1915.13 for Special Relief states that: At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include but is not limited to the award of temporary custody, partial custody or visitation; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court. The Court in Steele recognized that the trial court could not permanently modify the visitation order without a petition to modify, but affirmed that the trial court did have authority to temporarily suspend the order because of the irrational tendencies of the appellant and to protect the child during visitation. See Steele, 545 A.2d at 378. Like in Steele, the best interests of the children are served by temporarily modifying the custody and visitation arrangements at this time. It is our opinion that the Luzier children are severely alienated from their mother and that Appellant’s actions are significant contributing factors to this alienation. Dr. Shienvold reports that father has very strong feelings that their 9 28 mother is dangerous and relays this fear to the children. The boys now say they don’t want to 29 see their mother and don’t want to attend therapy sessions with Ms. Eash. The father accepts no responsibility for the children’s estrangement from their mom and blames it entirely on their 30 mom. It is our opinion that Appellant is contributing to the negative relationship that exists between the children and their mother and therefore it is not in the children’s best interests for Appellant to retain the almost exclusive primary physical custody he has had for over two years. Furthermore, even though this Court had proper authority to make a temporary change in custody based on the circumstances, the matter was still properly before the court pursuant to 31 Appellee’s Answer to the Emergency Petition to Suspend Custody on October 26, 2007. Appellant was aware that a modification in custody was at issue because it was filed as a New Matter with Appellee’s Answer when Appellee requested that minor children Casey and Zachary be placed in custody of a third person and that Cody be placed in her custody to avoid further alienation. CONCLUSION Appellant is actively alienating these children from their mother. The best interests of the children at this time are served by a temporary change in primary physical custody until such time as Appellant and Appellee can successfully work together to sustain a plan for reunification of the children with Appellee. This Appellant has consistently defied this Court, and knows full well that as long as he can control the daily lives of these boys the more he can promote their negative feelings toward their mother. He despises the Mother and regardless of the negative impact it will have in the boys’ future lives he continues to promote ill feeling and disrespect for 28 N.T. Nov. 30, 2007, 122 29 N.T. Nov. 30, 2007, 134 30 N.T. Nov. 30, 2007, 135-136 31 See Answer to Emergency Petition to Suspend Custody with New Matter, October 26, 2007, p. 6, ¶ 34. 10 a woman who has successfully addressed her psychological problems. This Court has given Appellant every opportunity to meaningfully participate in reunification counseling. Contrary to all of our attempts to promote such reunification, it has become crystal clear that as long as the Father controls the daily lives of these children, he will not comply with this Court’s directives to promote a more healthy emotional relationship of the boys with their mother regardless of the negative impact it will eventually have on his sons. By the Court, __________________________ M. L. Ebert, Jr., J. Joseph D. Caraciolo, Esquire Counsel for Appellant Foreman, Foreman, & Caraciolo, P.C. th 112 Market Street, 6 Floor Harrisburg, PA 17101 Diane M. Dils, Esquire Attorney for Appellee Dils & Dils 1400 North Second Street Harrisburg, PA 17102 11