HomeMy WebLinkAbout93-0023 CivilJORDAN D. CUNNINGHAM,
Plaintiff
Vo
-KIMBERLY B. CUNN1NGHAM,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION -- LAW
:
:
:No. 23 CIVIL 1993
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 14, 1998.
In this tenaciously litigated domestic relations case, the report of a custody conciliator
in 1993 expressed the view that "the children have probably been brutalized enough in this
case by the obvious anger and bitterness of both parents.''~ The docket now extends to ten
pages, and the most recent report of a (different) custody conciliator makes the following
observation: "Mother is clearly in contempt of the existing Order. Mother must be made to
understand that she cannot arbitrarily change the existing Order without proceeding through
the proper modification channels. The court must impress upon her the importance of
following Orders entered in this case, particularly in light of the extremely contentious nature
of the matter.''2
Presently on appeal by the mother to the Superior Court are those aspects of an order
of this court adjudicating her in contempt and declining her petition to modify an agreed-
upon custody order previously entered. In the same order, the court also denied the father's
petition to modify the prior order.3
This opinion in support of the court's adjudication of the mother in contempt and its
denial of her petition to modify the existing custody order is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
I Conciliator Conference Summary Report, filed December 3, 1993.
2 Conciliator Conference Summary Report, filed January 14, 1998.
3 Order of Court, April 22, 1998. The father has not appealed from the denial of his
petition.
STATEMENT OF FACTS
Plaintiff (now Appellee) is Jordan B. Cunningham, a 46-year-old attorney who
resides at 2320 North Second Street, Harrisburg, Dauphin County, Pennsylvania.4 Defendant
(now Appellant) is Kimberly B. Cunningham-Moss, a 47-year-old past director of the
Pennsylvania District Attorneys' Association, currently working in the Office of the
Pennsylvania Attomey General as a designer of its continuing legal education program; she
resides at 1713 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania.5
The parties were married on August 28, 1971.6 They separated on January 2, 1993.7
They were divorced in a bifurcated proceeding by a decree dated May 12, 1995. The terms
of a marital settlement agreement were entered as a decree supplemental to the divorce
decree on October 4, 1995.
Three children were born of the parties' marriage: Jordan Benjamin Cunningham
(d.o.b. September 4, 1980); Jared Daniel Cunningham (d.o.b. February 23, 1982); and
Christopher Kearins Cunningham (d.o.b. July 17, 1991).8 The children soon became the
objects of custody litigation.9 As the oldest child approaches his eighteenth birthday (on
September 4, 1998), his custodial status has become the focus of Defendant's present appeal
to the Superior Court.
4 See Order of Court, October 4, 1995, incorporating terms of Marital Settlement
Agreement, acknowledged September 28, 1995; N.T. 49, 89, Hearing, April 22, 1998.
s See Order of Court, October 4, 1995, incorporating terms of Marital Settlement
Agreement, acknowledged September 28, 1995; N.T. 217-18, Heating, April 22, 1998.
6 See Order of Court, October 4, 1995, incorporating terms of Marital Settlement
Agreement, acknowledged September 28, 1995; N.T. 271, Hearing, April 22, 1998.
7 N.T. 271, Hearing, April 22, 1998.
8 See Order of Court, October 4, 1995, incorporating terms of Marital Settlement
Agreement, acknowledged September 28, 1995.
9 See, e.g., Defendant's Petition for Custody, filed September 28, 1993.
The children apparently remained with their mother following the parties' separation
in 1993.1° However, her relationship with the eldest child, Benjamin, deteriorated to the point
that in 1994 she relinquished him to his father?! On May 19, 1994, an order was entered by
agreement of the parties whereby Defendant (the mother) was given primary physical custody
of the parties' two younger children, and Plaintiff (the father) was given primary physical
custody of the older child, Benjamin?2
For a period of about a year and three months, Defendant largely ignored Benjamin,
choosing to exercise her weekend visitation rights with him on only one occasion.~3 His
mother's apparent indifference to him caused a certain amount of bitterness in Benjamin. 14
Defendant decided to resume her visitation periods with Benjamin on the weekend
of January 21, 19967 After several months, she and Benjamin were discussing the prospect
of his leaving his father's residence and moving into her home; these discussions continued
for the next year.
In the discussions, Defendant told Benjamin that at her home he would have
everything that he had at his father's residence? According to Benjamin, his mother "said
l0 N.T. 89, Hearing, April 22, 1998.
i1N.T. 92, Hearing, April 22, 1998.
12 Order of Court, May 19, 1994. This arrangement was substantially ratified by the
parties in a marital settlement agreement acknowledged on September 28, 1995, the terms
of which were made an order of court on October 4, 1995.
13 N.T. 92, Hearing, April 22, 1998; N.T. 36, Hearing, January 27, 1998.
14 N.T. 39-40, Hearing, April 22, 1998.
is N.T. 92-93, Hearing, April 22, 1998.
16 N.T. 12, Hearing, January 27, 1998 (Testimony of Jordan Benjamin Cunningham).
~7 Id'
3
things could be provided to me, the same stuffat my dad's house.''18
Q. What could be provided to you?
A. At my dad's house I had a computer in my room. She
said if I needed that, I could have that. She said there wouldn't
be any difference.
Q. She promised to take you on vacations?
A. She didn't promise that. She said we can go on
vacations the same as your dad does.
Q. Was this before or after you decided to leave your
dad's?
A. Actually, she talked to me well a year in advance
before I made any decision to leave?
In March of 1997, Defendant moved from a two-bedroom townhouse with a
mortgage of $825 per month into a four-bedroom home which she purchased, having a
mortgage of $1400 per month? She denied that this purchase was intended to entice
Benjamin to leave his father? She did, however, testify to the following:
... Ben would say, you know, well, would I have the same
things if I lived with you? Would I have the same room?
Would I have nice clothes? Could I do certain things? And I
would say, sure, you would have the same standard of living?
During this time, the father was making a serious effort to deal with severe
disciplinary problems on the part of Benjamin. Verbal abuse by Benjamin had caused
18/d.
~9 Id'
20 N.T. 259-60, Hearing, April 22, 1998.
2~ N.T. 262, Hearing, April 22, 1998.
22 Id.
4
Defendant to relinquish him to his father,23 and, thereafter, the father's current spouse was
being called such names as "FuckingBitch" by Benjamin? (She has recently bome Plaintiff
a daughter, Morgan--Benjamin's half-sister?) Benjamin ran away from home several
times,26 exhibited an alcohol problem,27 and with certain friends of whom his father
disapproved began brewing beer? With these same individuals, Benjamin stole over $1000
in materials from construction sites,29 and on another occasion stole a pair of skis.3°
Benjamin's father forbade him to associate with these friends, made him get a part-
time job to pay restitution (an obligation which the father guaranteed), and provided
transportation for most of the 30 hours of community service which juvenile authorities
directed him to perform? The mother's participation in the latter activity was desultory,
because, according to Benjamin,
I was living at my dad"s house at the time, and she didn't feel it
was right for her to take -- be going out of-- not going out of her
way, but it was on my dad's time. And right then they were
23 N.T. 89-90, Hearing, April 22, 1998.
24 N.T. 6, Hearing, January 27, 1998 (Testimony of Jordan Benjamin Cunningham).
25 N.T. 74, Hearing, April 22, 1998.
26 N.T. 5, Hearing, January 27, 1998 (Testimony of Jordan Benjamin Cunningham).
27 N.T. 51-52, Hearing, April 22, 1998.
28 N.T. 25-26, Hearing, April 22, 1998.
29 N.T. 9-10, Hearing, January 27, 1998 (Testimony of Jordan Benjamin
Cunningham); N.T. 23, 25-26, 114, Hearing, April 22, 1998.
30 N.T. 23, Hearing, April 22, 1998.
3~ N.T. 23-24, 114, 116, Hearing, April 22, 1998.
5
having a lot of problems, and she didn't think it was her place to
take me on his time.32
Benjamin resented Plaintiff's proscription on contact with his aforesaid friends,33 was
angry that his father wanted him to continue working during the summer of 1997 after the
restitution had been paid,34 and was dissatisfied with the condition of a car which his father
provided him? He had always wanted a Jeep, which his father declined to buy him. 36
Benjamin objected to having to pay one-half the cost of insurance and maintenance on the
vehicle he was provided and for gasoline;37 and he was quarreling with Plaintiff' s current
spouse?
Around July 1, 1997, Benjamin violated Plaintiff's rule against associating with the
aforesaid friends,39 and Plaintiff's current spouse discovered ingredients and instructions for
brewing beer in a car he was driving.4° On July 7, 1997, Benjamin told Plaintiff that he was
leaving; according to Plaintiff, whose testimony on this point the court accepts, Benjamin
basically said, look, I'm not happy here. I'm not going to work
32 N.T. 24, Hearing, April 22, 1998.
33 Id.
34 N.T. 27-28, 115, Hearing, April 22, 1988.
35 N.T. 28, Hearing, April 22, 1998.
36 N.T. 170-71, Hearing, April 22, 1998.
37 N.T. 114-15, Hearing, April 22, 1998.
38 N.T. 4, Hearing, January 27, 1998 (Testimony of Jordan Benjamin Cunningham).
39 N.T. 25, Hearing, April 22, 1998.
40 N.T. 116, Hearing, April 22, 1998.
any longer. I don't want to work any longer. I shouldn't have
to pay. Mom says I'll have my own room. I don't have to buy
insurance. I don't have to pay for the car. And I'm going to get
a Jeep, so I'm out of here.4~
Benjamin then left the premises.42 After searching for him without success, Plaintiff
returned to his home to find the following message, posted at about 11:00 p.m., from
Defendant on his answering machine:
I have Ben. Don't even think of coming to get him.43
For a period of several months, Plaintiff acquiesced in this situation, because he
"thought the best thing to do was to let Ben cool off.''44 Defendant, during this time,
purchased a Jeep convertible for Benjamin's use, paying the insurance for it and sometimes
providing gas money to him.4s She rescinded Plaintiff's proscription on Benjamin's
association with his aforesaid friends,46 and permitted him to quit his job.47
When Plaintiff attempted to restore the status quo under the existing custody order in
December of 1997, Defendant called the police and Plaintiff was not permitted to meet with
his son.48 On numerous occasions thereafter Plaintiff tried to reassert his custodial rights with
41N.T. 117, Heating, April 22, 1998.
42 Id.
43 Id.
44 N.T. 117-18, Hearing, April 22, 1998.
ns N.T. 24, Hearing, January 27, 1998; N.T. 18, 263-64, April 22, 1998.
46 N.T. 9, Heating, January 27, 1998 (Testimony of Jordan Benjamin Cunningham);
N.T. 117, 133, 167, Hearing, April 22, 1998.
47 N.T. 27, 133, Hearing, April 22, 1998.
48 N.T. 47, Hearing, January 27, 1998.
7
respect to Benjamin, but his efforts were unavailing.49 Defendant's counsel informed Plaintiff
that he would not advise his client to retum Benjamin.so
Plaintiff filed a petition for contempt, which was subsequently amended, and a cross-
petition for custody; the latter petition sought a joint physical custody arrangement with
respect to the parties' children. Defendant filed a petition seeking primary physical custody
of Benjamin. A full-day hearing was conducted by the court on these matters,5! with the
record from a prior hearing being incorporated for purposes of the court's consideration of
the parties' positions?2 The record in this phase of the proceedings consists of over three
hundred pages of testimony.
Defendant, who has also remarried since the parties' divorce,53 concedes that she has
not complied with the court's existing order? She maintains that Benjamin is in a better
environment at her home. An incident in which she found vomit in his clothing on the
basement floor (a result of his drinking with the aforesaid friends) has not repeated itself,
according to her testimony,ss His frequent tardiness at school, while not condoned, is
attributed to the fact that "Ben's not a morning person.''sa She acknowledges that he has
recently been cited for a Vehicle Code violation, but distinguishes this from more serious
49 N.T. 118-20, Hearing, April 22, 1998.
50 N.T. 120, Hearing, April 22, 1998.
5! The hearing was held on April 22, 1998.
52 N.T. 4, Hearing, April 22, 1998. The prior hearing was held on January 27, 1998,
and dealt with facts relevant to the parties petitions subjudice.
53 N.T. 218, Hearing, April 22, 1998.
54 N.T. 268-69, Hearing, April 22, 1998.
ss N.T. 220, Hearing, April 22, 1998.
s6 N.T. 251, Hearing, April 22, 1998.
8
offenses? She has told her children that, if their father were to prevail in his request for a
shared custody arrangement as to all three children, she would reject this and move to
Philadelphia and they would see her only on weekends,sa
Plaintiff maintains that at this point in his life Benjamin is in need of structure,
stability and supervision? He contends that these interests are better served by his having
primary custody.6°
For his part, Benjamin has expressed a preference to live primarily with his mother.6~
He experiences less conflict in that household, according to his testimony.62 However, the
responsibility for this conflict does not, in the court's view, lie primarily with Plaintiff; for
instance, in the most recent family argument prior to the last hearing in this case, Benjamin
told his stepmother during dinner that a certain priest whom she mentioned could "suck my
cock.''63
At the conclusion of the hearing on Plaintiff's and Defendant's petitions, the court
entered the following order, from which Defendant appeals:
s7 N.T. 219, 249, Hearing, April 22, 1998.
s8 N.T. 30, 159-61,238-39, Hearing, April 22, 1998.
s9 N.T. 127, Hearing, April 22, 1998.
60 N.T. 48-49, Hearing, January 27, 1998; N.T. 127, Hearing, April 22, 1998.
6~ N.T. 8, Hearing, January 27, 1998 (Testimony of Jordan Benjamin Cunningham).
62 Id.
63 N.T. 53, 61,131, Hearing, April 22, 1998.
The court did accede to Benjamin's preference on a temporary basis by an order
dated January 27, 1998, because he was about to undergo surgery, and the court did not want
to cause him any additional stress. This operation, according to Defendant, went "extremely
well." N.T. 218, Hearing, April 22, 1998. Following the operation, Benjamin's understanding
was that he would be able to resume his customary athletic activities as of May 21, 1998,
according to his testimony. N.T. 69, Hearing, April 22, 1998.
9
AND NOW, this 22nd day of April, 1998, upon
consideration of Defendant's request to modify custody,
Plaintiff's request to modify custody and Plaintiff's contempt
petition with respect to the parties' children, Christopher
Kearins Cunningham (date of birth July 17, 1991), Jared Daniel
Cunningham (date of birth February 23, 1982), and Jordan
Benjamin Cunningham (date of birth September 4, 1980), it is
ordered and directed as follows:
1. Defendant's request to modify custody is denied.
2. Plaintiff's request to modify custody is denied.
3. The Plaintiff's contempt petition is sustained,
Defendant is found in contempt of the Order of Court dated May
19, 1994, and she is sanctioned to pay the sum of $500.00 for
the contempt. Counsel fees in the amount of $300.00 are
awarded to Plaintiff.
4. Neither parent shall permit, facilitate, encourage or
otherwise accommodate a child who does not wish to comply
with the Court's Order. In all other respects, the Order of Court
dated May 19, 1994, shall remain in full force and effect.
Defendant has filed a Concise Statement of Matters Complained of on Appeal which
runs to four pages. The statement complains that the court should have allotted more time for
the hearing. It contends that the court erred in declining to award primary physical custody
of Benjamin to Defendant by virtue of Benjamin's expressed preference, the general rule
against separation of siblings, the less stressful environment in Defendant's home, recent
improvements in Benjamin's school performance, religious training recently engaged in by
Benjamin, and Plaintiff's alleged willingness to accept a reduction of his custodial rights as
to Benjamin, inter alia. Defendant further maintains that the court erred in adjudicating
Defendant in contempt in light of numerous mitigating factors, such as Benjamin's act of
absconding from Plaintiff's custody and Plaintiff's temporary acquiescence in this conduct.
Finally, Defendant argues that the contempt adjudication was invalid because the court failed
to follow "the proper five-step contempt procedure."
10
DISCUSSION
Amount of time allotted for heating. A certain amount of discretion has to reside with
a trial court in terms of the extent of proceedings before it. See, e.g., Commonwealth ex rel.
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
Poselv. Redevelopment Authority, City of Philadelphia, 72 Pa. Commw. 115, 122, 456 A.2d
243, 247 (1983); 38 P.L.E. Trial §21, at 29 (1961).
In the present case, the court made it clear to counsel that one day had been allotted
for the hearing on April 22, 1998, that each side would have one-half day for its presentation
and that the court would consider the evidence presented at an earlier hearing on January 27,
1998, as well.64 Defendant's counsel "accepted" these ground rules, and held Plaintiff's
counsel to them.65
The resulting record, which included more than 300 pages of transcribed testimony,
afforded both parties more than sufficient time, in the court's view, to present their positions
on the relatively simple matters at issue.
Merits of court's refusal to transfer primary, physical custody of Benjamin to
Defendant. Neither the preference of a child as to parental custody nor the general rule
against separation of siblings is automatically controlling on the issue of a proper custody
order.66 The overriding consideration in each custody case is the best interest of the child.67
(With respect to separation of siblings, it may also be noted that, in the present case,
64 N.T. 4, Hearing, April 22, 1998.
6s N.T. 138-39, Hearing, April 22, 1998.
66 Cardamone v. Elshoff, 442 Pa. Super. 263,278, 659 A.2d 575, 583 (1995).
67 Karner v. McMahon, 433 Pa. Super. 290, 302, 640 A.2d 926, 932 (1994).
11
Benjamin had a sibling residing in each party's household,68 and that the parties themselves
had previously agreed that different primary residences were appropriate for their children.69)
Another factor which may be considered in a custody action where both parents are
fit is which party has served as primary caretaker of the child? In this regard, since the
parties' separation the father acted in the capacity of caretaker more than the mother did.
In this case, the court felt, after carefully evaluating the attitude, sincerity, credibility
and demeanor of the witnesses,TM that Benjamin was in need of some fm~n guidance in the few
months remaining before he reached the age of majority (when the more serious
consequences of misconduct imposed upon adults would take effect). The court felt that
Plaintiff had tried to provide this guidance in the form of reasonable disciplinary measures
and rules, and that Defendant had undertaken to undermine this effort for reasons unrelated
to Benjamin's welfare.
In so concluding, the court did not in any way question the love that each parent had
for each of the children. Nor did it doubt that Benjamin, like the parties' other two children,
was a very admirable young man, with great potential and a bright future, doing his best to
68 See Gancas v. Shultz, 453 Pa. Super. 324, 683 A.2d 1207 (1996) (rule applies to
half-siblings).
69 See Order of Court, May 19, 1994; Order of Court, October 4, 1995, incorporating
terms of Marital Settlement Agreement, acknowledged September 28, 1995.
7o See Wiskoski v. Wiskoski, 427 Pa. Super. 531,537, 629 A.2d 996, 999 (1993).
71 "We have recognized [in custody cases] that the trial judge is in a position to
evaluate the attitude, sincerity, credibility and demeanor of the witness." Delbaugh v.
Delbaugh, 337 Pa. Super. 587, 590, 487 A.2d 417, 418 (1985) (citations omitted).
12
cope with difficult family circumstances?
Defendant's conduct as constituting contempt of existing court order. Defendant
conceded that she had not complied with the court's existing order in this case. This
noncompliance persisted notwithstanding numerous efforts on the part of Plaintiff to assert
his custodial rights. The court found itself in agreement with the statement of the second
custody conciliator quoted at the beginning of this opinion.
Alleged invalidi _ty of contempt adjudication on procedural _mounds. The petition-and-
hearing procedure used by the court and parties in this instance was the same procedure
employed when the court adjudicated Plaintiff in contempt on an earlier occasion at
Defendant's request.73 Defendant made no objection to this procedure, and has, in the court's
view, waived any argument that the adjudication was invalid because of a failure to follow
the five-step contempt procedure.TM
For the foregoing reasons, it is believed that the aspects of this court's order dated
April 22, 1998, from which Defendant has appealed were properly entered.
Paige Macdonald-Matthes, Esq.
2320 North Second Street
P.O. Box 60457
Harrisburg, PA 17106-0457
Attorney for Plaintiff
72 With respect to Defendant's position that the court's order awarded Plaintiff more
custodial rights as to Benjamin than he was requesting, the court did not understand, as
Defendant seems to suggest, that Plaintiff was willing to reduce his custodial rights with
regard to Benjamin in the absence of the court's acceptance of his related proposal that
custody of all of the children be shared.
73 See Order of Court, February 15, 1994.
74 See, e.g., Smith v. Smith, 431 Pa. Super. 588, 637 A.2d 622 (1993); Travitzky v.
Travitzky, 369 Pa. Super. 65, 534 A.2d 1081 (1987).
13
Albert Momjian, Esq.
Stephen J. Anderer, Esq.
Suite 3600
1600 Market Street
Philadelphia, PA 19103
Attorneys for Defendant
14