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HomeMy WebLinkAbout2007-5999 Civil CARLA D. PRATT, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANTHONY MICHAEL PRATT, : DEFENDANT : 07-5999 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., July 8, 2008:-- Carla D. Pratt, age 39, and Anthony Michael Pratt, age 49, are the parents of Payton N. Pratt, age 13, born September 1, 1994, and Christopher M. Pratt, age 10, born June 1, 1998. The mother seeks primary custody of Payton and Christopher and permission to move them to Texas. The father seeks primary custody of the children and is opposed to their moving to Texas. Hearings were conducted on June 16 and 19, 2008. The parents were married on August 23, 1997. It was the father’s first marriage. 1 He is the father of a daughter, Jeanine, age 32, whose mother he did not marry. It is the mother’s second marriage. Her first husband, whom she divorced, is Payton’s natural father. Anthony Pratt adopted Payton when she was three years old. The father is a partner in a law firm in Philadelphia. He earned $435,000 in __________ 1 Jeanine and her husband live in Landstown, Pennsylvania. She is pregnant and has a daughter, Jaelyn, age 8. She and her father have a close relationship. Jeanine knows Payton and Christopher well. 07-5999 CIVIL TERM 2007, and anticipates an increase this year. The mother, until she resigned as of June 13, 2008, was a law professor and an associate dean at the Dickinson School of Law of Penn State University in Carlisle. She started there on July 1, 2000, and obtained tenure in May, 2007. She had an annual income of $152,600: $119,000 in salary plus $33,600 for research and her duties as Associate Dean. The mother and father were both working for law firms in Philadelphia when they were married in 1997. When Payton was born the mother reduced her time at work to approximately sixty-five percent.The mother wanted a career in education. Upon obtaining the position at Dickinson in the summer of 2000, she rented an apartment in Carlisle and moved with Payton. Christopher stayed with his father in Philadelphia. The mother went to Philadelphia each weekend and on some weekday evenings. In mid-2001, Payton moved back with the father in Philadelphia. The father’s brother lived in the back of the home they were living in. He, the father’s daughter Jeanine and her husband, and babysitters helped him with the children. The mother continued to come to Philadelphia each weekend and some weekday evenings. The father left his law firm in the summer of 2002 to work for the Honeywell Corporation near Morristown, New Jersey. The mother left her position at Dickinson and moved with the father and the children to New Jersey. She took some limited part- time work. In May, 2003, the father left Honeywell and returned to his law firm in Philadelphia. In June, 2003, the mother returned to Dickinson. The parents leased a home in Carlisle into which Payton and Christopher moved. At the end of the summer, -2- 07-5999 CIVIL TERM Christopher went to kindergarten and Payton to elementary school. The father started coming to Carlisle each weekend and some weekday nights. The parents built a five bedroom home on a one and a half acre site in Dickinson Township into which they moved in October, 2004. They hired an au pair from Brazil between April, 2006, and February, 2008. She worked weekdays and provided some help on weekends. The father’s law firm has an office in Harrisburg out of which he has occasionally worked. The father became Vice-Chancellor of the Philadelphia Bar in 2006. He became Chancellor in 2008 for a term that will be completed at the end of December. This position is demanding of his time although he has continued to return home every 2 weekend, all holidays, and some weekday nights.When he is not home, he talks by phone most days with each child. In February, 2008, the mother accepted a position starting this summer as a law professor at Texas Wesleyan University School of Law in Fort Worth, Texas. Her annual income will be $118,000 with a $15,000 research stipend if she publishes but only $5,000 if she does not publish. She intends to publish. She has leased a three bedroom house for one year in North Richland Hills, a suburb of Fort Worth. If Payton and Christopher are living with her, she will send them to schools in the local school district which she believes is equivalent to the Carlisle School District where they have been attending. Payton will be in eighth grade and Christopher in fifth grade. __________ 2 The mother was supportive of the father becoming Chancellor because they both knew that it would create many business opportunities for him. -3- 07-5999 CIVIL TERM The mother told the father in May, 2007, that she wanted a divorce. She filed a divorce action in October, 2007, and told him that she was thinking about moving. She told him just before Christmas that she was leaving. He did not learn until this June that she was definitely going to Texas. For the last ten months, the mother has seldom been home when the father has been there on weekends. She was not there from Christmas Evening until New Year’s Day or from May 21 to June 8. The mother testified she was moving to Texas on June 21 even if her petition to bring Payton and Christopher is denied. She testified that the children are staying with the father this summer. Payton is attending a drama program in Carlisle that runs through July 14. From July 27 to August 17 she will be at a theatre camp in upstate New York. Christopher is already in a YMCA camp for approximately four weeks, and after that he will be attending a computer camp. The mother grew up on the Oklahoma -- Texas border in an area that is approximately an hour and three-quarter drive time from Fort Worth. Her parents are deceased. She owns the farm on which she was raised and she visits there with Payton and Christopher for about a month each summer. The father has routinely joined the family during part of these visits each summer. The mother has a half-sister Carla Cheval, who lives about a twenty-five minute drive from where she will live in Fort Worth. Carla is single, lives with her daughter Kaitlyn, and operates a gift basket business out of her home. She testified that she will help the mother if needed. The mother has a cousin, Renee, who lives about a forty-five minute drive from Fort Worth. -4- 07-5999 CIVIL TERM She has numerous other relatives who live approximately a one hour forty-five minute to two hour drive from Fort Worth. The mother testified that it has been hard for her in Carlisle, she has been sick a lot, and she needs the emotional and physical support of her family. She has always 3 wanted to return to the area of her roots. She testified that positions as a professor at law schools are not always available. Taking the position at Texas Wesleyan is her opportunity to return to the area where she wants to live. She believes there will be a “trickle down effect” that will benefit Payton and Christopher because of the positive effect of her living and working in Texas where she will have the support of her 4 extended family. The father testified that all of the different living arrangements of the children were with the approval and support of the mother. The mother did not disagree, although she testified that on occasions she asked the father to move his law practice to his firm’s Harrisburg office, at least part-time. He denied that. The father testified that if he is granted custody of Payton and Christopher he will live full-time in the home in Carlisle. He believes that the best thing for the children is for them to remain in __________ 3 She called a witness who went to law school with her who testified that even then she wanted to return to her roots. 4 The mother also testified that the focus at Dickinson is shifting to its campus at State College. She is not willing to move Payton and Christopher to State College. Notwithstanding, the Dickinson campus in Carlisle is being rebuilt and expanded, and there is no credible evidence that the mother’s tenured position in Carlisle is at risk such that it would be in her best interest to work elsewhere. -5- 07-5999 CIVIL TERM Carlisle. He will start transferring his work to the Harrisburg office of his law firm, and by mid-September he expects to work there full-time. He does not believe this will reduce his current client base or decrease his income, although it will be more difficult for him to increase his client base. He plans to take off two weeks at the beginning of the school year. After that he will be there on all weekends and at least two days a week until the end of the year. The mother’s Aunt Beverly, who lives in Oklahoma, will come to Carlisle for some periods to help him. The father also has a sister who will 5 help. He will never leave the children unattended. The father acknowledges that the children will miss their mother, but he believes it will be worse for them if they move to Texas. Since October, 2006, the mother has been undergoing therapy with Edward Franko, a clinical psychologist. The therapist has primarily dealt with her dissatisfaction and emotional concerns about her marriage. The father, who suffers from insomnia, also undergoes therapy. He is stressed and anxious and has some depression although no functional problems. The family belongs to a church in Carlisle but they do not attend regularly. Payton and Christopher are both excellent students although Payton’s grades slipped in the last quarter. Both parents attribute this primarily to the current family turmoil. 5 Most of the father’s family, including his mother, live in the area of Uniontown, Pennsylvania. While the children know these family members they are not as close to them as they are to members of the mother’s family. -6- 07-5999 CIVIL TERM The mother and father have both been involved in attending school activities and functions although the mother has done a little more. Christopher likes sports and electronics, and he plays the drums. Payton particularly likes to swim. She likes drama and being with her friends. Both parents acknowledge that Payton can sometimes be difficult which they attribute to her starting her teenage years. Arnold Shienvold, Ph.D., an experienced psychologist who specializes in custody issues, conducted a custody evaluation. He found both Payton and Christopher to be bright, articulate, well-rounded and sophisticated for their ages. They love both their parents and have no significant preference of one over the other. They both have resiliency. They both prefer to stay with their father in Carlisle, Payton even more than Christopher. Payton recognizes that both parents can care for her, but it would be really upsetting to her to move as she is focused on school, friends and activities. Christopher also has child-focused interests. Dr. Shienvold believes that the preferences of the children are real and not influenced by either parent. It is the opinion of Dr. Shienvold that it is not in the best interest of the children to relocate them to Texas. He testified that the literature generally recognizes that when a parent moves a child a significant distance from the other parent it is often difficult and disruptive for the child. He believes that there will be more disturbances and risk in moving the children than with them staying with their father in Carlisle. He does not believe a move to Texas will provide benefit to the children. LEGAL PRINCIPLES -7- 07-5999 CIVIL TERM Gruber v. Gruber, In 400 Pa. Super. 174 (1990), the Superior Court of Pennsylvania set forth three factors for consideration in determining whether a parent should be permitted to relocate children outside of the geographical area of the non- custodial parent: 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 set Gruber forth 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 interests of the child lie." Collins v. Collins, In 897 A.2d 466 (Pa. Super. 2006), the Superior Court stated that when there is no final custody order in place when a parent files a petition to relocate a child, the trial court must scrutinize the custodial environment offered by each parent without favoring one or the other, as part of the requisite best interest analysis. The focus of the court must be on determining which parent and which living situation Id. provides a familial setting that better serves the children’s best interest. Gruber Anderson v. McVay, As to the first factor, the Superior Court stated in 743 A.2d 472 (Pa. Super. 1999): A court need not consider only economic benefits when -8- 07-5999 CIVIL TERM 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 interest and quality of life of the custodial parent.” . . . [T]here is no need . . . to show an independent 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.) While a court should consider expert testimony it is not obligated to accept the Masser v. Miller, conclusions of an expert. See 913 A.2d 912 (Pa. Super. 2006). Although the express wishes of a child are not controlling, such wishes do constitute an important factor that must be carefully considered in determining the child’s best Id. interest. The child’s preference must be based upon good reasons, and the child’s Id. maturity and intelligence must also be considered. DISCUSSION Carla Pratt and Anthony Pratt are very capable individuals and excellent parents. Given their unique working arrangements over the years, they both at all times have maintained a close involvement in all aspects of the lives of Payton and Christopher. The children love both parents and do not favor one over the other. Although young, they are age appropriate and for understandable and good reasons they both prefer to live with their father in their home in Carlisle rather than move with their mother to Fort Worth, a city to which they have no connection. The younger Christopher is only eight years from completing high school. The mother is only 39 -9- 07-5999 CIVIL TERM years old. She is taking a minimum $13,600 reduction in income in her new position which offers no increased opportunity for professional advancement over that which she had at Dickinson. Even though the mother never lived in Fort Worth, her decision to move there is driven by her desire to return to the region of her roots. Her half-sister Carla and her cousin Renee are in the general area of where she will be living. The rest of her family, and her farm, are up to a two hour drive away. While the mother’s moving to Fort Worth is not a momentary whim, to move there out of a desire to return to her roots and because of her perceived need for family support does not convince us that the potential advantages will substantially improve the quality of her life and the lives of Payton and Christopher. We agree with Dr. Shienvold that there will be more disturbances and risk in moving Payton and Christopher to Fort Worth than with them staying in their home with their father in Carlisle. The children have always had extra care providers. The arrangements the father will make in Carlisle along with the direct care that he will provide in the children’s home will be in their best interest. The father’s motives in opposing moving the children to Fort Worth are well founded. The mother’s motives in moving the children to Fort Worth are founded upon what she feels is best for her, which she believes will provide a trickle down benefit to the children. With the mother living in Fort Worth and the children living with their father in Carlisle, it will be much easier for her to have realistic, substitute visitation arrangements than it will be to provide them to him. One of the real benefits of the mother’s employment is the -10- 07-5999 CIVIL TERM substantial amount of time she has off, not only each summer but also during the course of each school year. The children are already used to spending a month with her at her farm in Oklahoma. The mother’s schedule for the upcoming school year requires only three days each week of classroom teaching. The parents have ample means. Thus, besides there being significant periods of time when Payton and Christopher can be with the mother in Texas, she should be able to visit with them on 6 occasions in Carlisle. For the foregoing reasons, we will enter the following order denying the petition of the mother to move Payton and Christopher to Fort Worth, Texas. ORDER OF COURT AND NOW, this day of July, 2008, the petition of Carla D. Pratt to IS DENIED. move Payton N. Pratt and Christopher M. Pratt to Fort Worth, Texas, By the Court, Edgar B. Bayley, J. Carol J. Lindsay, Esquire For Plaintiff Marie P. Cognetti, Esquire __________ 6 The parents agree that no matter which way the court rules on the mother’s petition to move Payton and Christopher to Texas, they will work privately to make arrangements for the parent out of primary physical custody to be with the children. -11- 07-5999 CIVIL TERM For Defendant :sal -12- CARLA D. PRATT, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANTHONY MICHAEL PRATT, : DEFENDANT : 07-5999 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this day of July, 2008, the petition of Carla D. Pratt to IS DENIED. move Payton N. Pratt and Christopher M. Pratt to Fort Worth, Texas, By the Court, Edgar B. Bayley, J. Carol J. Lindsay, Esquire For Plaintiff Marie P. Cognetti, Esquire For Defendant :sal