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HomeMy WebLinkAbout2001-2099 CivilBARBARA J. WEIBLEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW PAUL WEIBLEY, Defendant : No. 01-2099 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May 21, 2008. In this 2001 custody case, both parents eventually requested a modification of custody with respect to their son, who was born in 1996, to acquire primary physical custody for themselves.' Ultimately, a two-day hearing on these requests was held by this court and an order entered which (a) left intact the roughly, but not exactly, equal physical custody arrangement previously in effect and (b) authorized the father to make final decisions with regard to legal custody issues .2 From this order, the mother has filed an appeal to the Pennsylvania Superior Court .3 The bases for the appeal have been expressed in a statement of matters complained of on appeal as follows: 1. The Trial Court failed to modify the custody to a true 50150 split arrangement which was an error of law and abuse of discretion, where the evidence mandated a true 50150 split, and where even the father's own expert recommended the same, and where mother was willing to accept the same in place of her request for primary custody. 2. The trial court erred in not awarding Mother shared legal custody as to all major decisions, and instead gave the same to father and the child's best interest was therefore not served, especially where the evidence showed the father did not follow through on all of his obligations and promises with the child .4 This opinion in support of the custody order appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). ' See Defendant's Petition for Modification, filed August 13, 2004; Plaintiff's Answer and Counterclaim to Petition for Modification, filed September 2, 2004. 2 Order of Court, February 21, 2008. s Plaintiff's Notice of Appeal, March 12, 2008. 4 Defendant's Concise Statement of Matters Complained of on Appeal, filed April 4, 2008. STATEMENT OF FACTS Plaintiff is Barbara J. Weibley, 50, a resident of Mount Holly Springs, Cumberland County, Pennsylvania, and an "inventory specialist."5 Defendant is Paul E. Weibley, 51, a resident of Carlisle, Cumberland County, Pennsylvania, and a glass processor .6 The parties are the parents of ten -year-old Justin Priest Weibley, who is the subject of this proceeding, and his brother, Austin Weibley, now an adult. The parties were married in September of 1980, separated in September of 2000, and were divorced in May of 200 1. 8 When the parties separated, the mother left the children with the father, telling him that "they are yours to raise."9 Initially she maintained little contact with the children, exercising only occasionally an option to have custody of them one weekend a month. 10 By an agreed-upon order of court dated April 23, 2003, the parties were directed to engage in a course of co -parenting counseling and to submit to a custody evaluation. i i Legal custody of Justin was to be joint, and physical custody was to be divided between the parents on the following basis: During alternating weeks, the Mother shall have custody of Justin from Monday at 5:00 pm for six consecutive days through the following Sunday at 5:00 pm and the Father shall have custody of Justin from Sunday at 5:00 pm for eight consecutive days through Monday at 5:00 12 pm. 'N.T. 4-5, Hearing, August 22, 2007. 6 N.T. 4, Hearing, August 22, 2007. N.T. 5, Hearing, August 22, 2007. 'N.T. 5, Hearing, August 22, 2007. 9 N.T. 7, Hearing, August 22, 2007. 10 N.T. 7, Hearing, August 22, 2007. " Order of Court, April 23, 2003. 'Z Order of Court, April 23, 2003. This order was amended, by further agreement of the parties, to provide a sort of right -of -first -refusal of the non-custodial party in the event a custodial parent was unavailable to exercise physical custody for a period of three hours or more. Order of Court, July 10, 2003. 2 Both parents subsequently sought a modification of the order to obtain primary physical custody for themselves. 13 At the hearing on these requests, a portrait emerged of Justin which demonstrated the adverse effect which competing parental interests can have on a child's life. As of the hearing, the ten -year-old child suffered from attention deficit hyperactivity disorder, 14 had developed serious hypertension, 15 and weighed 229 pounds. 16 A sensitive child, afraid of the dark, 17 he was burdened by a feeling that he was responsible for his parents' adversarial positions. 18 A number of observations made by the custody evaluator involved in this case, Dr. Arnold T. Shienvold, are instructive with respect to the pressures on this child: Justin is pretty guarded. Justin ... is a little guy who is very sensitive and concerned about his parents' perceptions and whether or not he is doing anything that would offend them or make them feel bad.19 Justin wants to agree with both of his parents.... Justin feels the pressure in this situation and doesn't want either of his parents to be unhappy.20 [A]11 Justin wants is his parents to stop fighting and be at peace with each other, and he clearly indicated that....21 The situations in which Justin was placed by his parents' competitive agendas were capable of reducing him to tears .22 On balance, the mother, whose " Defendant's Petition for Modification, filed August 13, 2004; Plaintiff's Answer and Counterclaim to Petition for Modification, filed September 2, 2004. 14 N.T. 11, Hearing, August 22, 2007. " N.T. 136, Hearing, August 22, 2007. 16 N.T. 11, Hearing, August 22, 2007. 17 N.T. 25, Hearing, February 20, 2008. " N.T. 31, Hearing, February 20, 2008. 19 N.T. 50, Hearing, August 28, 2007. 20 N.T. 58, Hearing, August 22, 2007. 21 N.T. 59, Hearing, August 22, 2007. 22 N.T. 129, Hearing, August 22, 2007; N.T. 26, 29, Hearing, February 20, 2008. 3 psychological profile indicated depression, resentment and traces of narcissism sometimes indicative of self-centered and manipulative behavior ,23 seemed to the court the less responsible parent in terms of accommodating Justin's needs, emotional and physical. In this regard, she had, at various times, abandoned him to his father '24 discharged or acted to frustrate the efforts of professionals who were helping him, 25 deprecated the seriousness of his condition of ADHD 26 and obesity, 27 and failed to take him to his sports activities. 28 The father, whose psychological profile revealed defensive tendencies,29 was also on occasion insensitive to the child's needs '30 but less so than the mother in the court's view. With respect to a physical custody schedule, evidence at the hearing included information that the child had met with the mother's counsel at some point prior to the hearing and at that meeting chose not to express a preference on the subject.31 However, at his mother's insistence, he returned to the attorney's office for a second meeting,32 and at that meeting said he would prefer that his parents had exactly equal time .33 A few days before the final day of the hearing, according to a witness, the following transpired:34 Justin and [the witness] went to my mom and dad's on Monday, and while we were in the car he said he wanted to talk to me. I want to talk to you. I 2s N.T. 48-49, Hearing, August 22, 2007. 24 N.T. 7, Hearing, August 22, 2007. 2s N.T. 51, 77, 127, Hearing, August 22, 2007. 26 N.T. 21, 56, 73, Hearing, August 22, 2007. 27 N.T. 56, 73, 141, Hearing, August 22, 2007. 2s N.T. 31, 56, Hearing, August 22, 2007; N.T. 9-12, Hearing, February 20, 2008. 29 N.T. 49, Hearing, August 22, 2007. so See, e.g., N.T. 51, 64, Hearing, February 20, 2008. 31 N.T. 40-41, Hearing, February 20, 2008. 12 N.T. 41, Hearing, February 20, 2008. " N.T. 44, Hearing, February 20, 2008. 34 The witness was the father's present wife, whom Justin had come to regard as somewhat of a confidante and less interested third party. 11 was like okay. And he told me that his mom told him that he was coming to the court to talk to the Judge, and that he was going to tell the Judge that he wants—that his mom wants him to live with her for two extra days, and what could occur, and he said when the conversation started, that when his mom asked him, do you want to go to the Judge, Justin told me he said no, but he said mom talked to me, and that all I have to do is go in, tell the Judge I want to stay with her for two extra days, and then go back to school." Notwithstanding Dr. Shienvold's admonition that it would be harmful to Justin for him to be called as a witness, 16 the ten -year-old was subjected to examination by the mother's counsel at the hearing and was asked to express his preference as to the custody schedule. He testified as follows: Q If you could change anything about the current way your parents exchange you, is there anything that you would change about it? A I'd like an extra day with my mom. Q And did anybody make you say that or tell you you had to say that? A No, not really. Well, me and my mom talked about it a little. Q Okay? A I said, hey, mom, wouldn't it be nice if we had Sunday nights or something, equal time. Q You said that to her? A Um -hum. Q Do you remember when you said that to her? A I don't exactly. I think it was about two weeks ago maybe. Q And when you saw me the second time, didn't you say something similar to that to me? A Yes.37 In Dr. Shienvold's view, there was no significant difference between the parties' existing physical custody schedule and an exact 50/50 split from the child's standpoint.38 His opinion in this regard was as follows: " N.T. 25-26, Hearing, February 20, 2008. 36 N.T. 52-53, Hearing, August 22, 2007. 37 N.T. 43-44, Hearing, February 20, 2008. " N.T. 72, Hearing, August 22, 2007. E You know, I think I said that I don't believe that the problem in this case is one of custodial schedules. The problem in this case has to do with the parents' feelings about each other. It has to do with their ability to make decisions together. It has to do with trusting decisions that people are making that are child centered and in the best interest of Justin.39 Dr. Shienvold did concede that a 50/50 split might result in Justin's being subjected to less pressure from his mother due to a perception that the existing arrangement was "unfair" to her.40 With respect to legal custody, the record was replete with evidence as to the parties' inability to communicate and jointly reach and execute important decisions as to the child's upbringing. 41 The effect of this conflict was unquestionably deleterious to the child .42 Although both parties professed a willingness to employ the services of a "parent coordinator,"43 as recommended by Dr. Shienvold'44 to resolve such conflicts, after two months they were still not able to agree upon a person to fulfill this function.45 Following the hearing, the court entered a custody order with respect to Justin which preserved the existing physical custody arrangement .46 The order further gave the father ultimate authority to resolve disputed legal custody issues, with the express proviso that he was to "accord great weight to the child's wishes ."47 From this order, the mother filed an appeal on March 12, 2008. s9 N.T. 58, Hearing, August 22, 2007. 40 N.T. 72, Hearing, August 22, 2007. 41 See, e.g., N.T. 9-10, 21-24, 26, 31, 36-38, 40, 50-60, 62, 68, 73, 77, 96-97, 99, 108, 111, 113- 14, 121, Hearing, August 22, 2007; N.T. 9-12, 63-64, Hearing, February 20, 2008. 42 N.T. 60, Hearing, August 22, 2007. 43 N.T. 88, 146-47, Hearing, August 22, 2007. 44 N.T. 60-61, Hearing, August 22, 2007. 41 See Order of Court, August 22, 2007; Order of Court, October 25, 2007. 46 Order of Court, February 21, 2008. 47 Order of Court, February 21, 2008. 0 DISCUSSION Statement of law. Custody orders may be modified upon a showing by either party that a change in the current custody arrangement would be in the best interest of the child. B.B. v. M.M.B., 448 Pa. Super. 133, 141 n.9, 670 A.2d 714, 718 n.9 (1996). The paramount concern of the court in such cases is the best interest of the child; all other considerations are deemed subordinate to the child's physical, intellectual, moral, and spiritual wellbeing. Warren v. Rickahaugh, 410 Pa. Super. 431, 435, 600 A.2d 218, 220 (1991). The preference of the child and expert opinion on the subject of custody are significant factors to be considered, but neither binds the court with respect to its determination as to the child's best interest. See Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. 2000); Murphey v. Hatala, 350 Pa. Super. 433, 443, 504 A.2d 917, 922 (1986). "'[P]hysical custody' means actual physical possession of a child." Pa. R.C.P. 1915.1. "`[L]egal custody' means the legal right to make major decisions affecting the best interests of a minor child, including but not limited to medical, religious and educational decisions." Pa. R.C.P. 1915.1. "`Shared custody' means shared legal or shared physical custody or both of a child in such a way as to assure the child of frequent and continuing contact, including physical access, to both parents." Pa. R.C.P. 1915.1. However, there is no presumption in favor of shared custody. Schwarcz v. Schwarcz, 378 Pa. Super. 170, 183 n.16, 548 A.2d 556, 563 n.16 (1988). Finally, "[a] modification of custody is not warranted merely because one parent is unhappy with the existing arrangement." Jackson v. Beck, 2004 PA Super 357, ¶6, 858 A.2d 1250, 1252. Application of law to facts. In the present case, for the reasons indicated in the Statement of Facts, the court found itself in agreement with the custody evaluator, Dr. Shienvold, that a resolution of the problem in this case, from the standpoint of the child's best interest, was not to be found in a modification of the 7 roughly, albeit not exactly, equal physical custodial periods of the parents. The custody arrangement in effect served to assure the child frequent and continuing contact with both parents, and a change in the schedule to accommodate the request of either parent seemed to the court more likely to advance parental interests than those of the child. With respect to legal custody, it appeared to the court that the conflicting agendas of the parents, driven in large part by personal animosity, and their inability to effectively communicate, were seriously and adversely affecting the child's emotional and physical health. For the reasons indicated in the Statement of Facts, the father seemed more responsible in terms of decision-making with regard to the child than the mother. Consequently, and not without some reluctance, the court awarded legal custody to the father in the hope that the child would thereby be spared some of the anxiety associated with the parents' inability to cooperate on important decisions relating to his care. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Jennifer L. Spears, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant '3 BY THE COURT, J. Wesley Oler, Jr., J.