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HomeMy WebLinkAbout2001-0479 Civil MICHAEL J. REIGLE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MELODIE A. BARNACZ, : DEFENDANT : 01-0479 CIVIL TERM IN RE: CUSTODY OPINION IN SUPPORT OF ORDER DATED SEPTEMBER 2, 2008 Bayley, J., September 16, 2008:-- Michael J. Reigle, age 31, and Melodie A. Barnacz, age 31, were married in 1994, separated in January, 2001, and divorced in 2003. They are the parents of Kelsey Reigle, age 12, born October 6, 1995, Clayton Reigle, age 11, born July 9, 1997, and Kamryn Reigle, age 9, born September 9, 1999. The three children have been in the primary physical custody of their father since the parties’ separation. A current custody order entered on July 20, 2005, provides the mother with temporary physical custody during the school year of every other weekend from Friday evening until Sunday evening. She has the children during the summer except for one week and two weekends that the father has them. The parents alternate holidays. On June 20, 2008, the father filed a petition to relocate the children to another state. The mother opposes the move. A hearing was conducted on August 28, 2008. An order was entered on September 2, 2008, that provides: (1) All prior custody orders are vacated and replaced with this order. (2) Michael J. Reigle and Melodie A. Barnacz shall have shared legal custody with their children, Kelsey Reigle, born October 6, 1995, Clayton Reigle, born July 9, 1997, and Kamryn Reigle, born September 9, 1999. (3) Primary physical custody of Kelsey, Clayton and Kamryn is awarded to their father. (4) The petition of the father to move Kelsey, Clayton and Kamryn to IS GRANTED. Salem, Indiana, 01-0479 CIVIL TERM (5) The mother shall have temporary physical custody of Kelsey, Clayton and Kamryn as follows: (a) From the second Saturday after the end of each school year to the third Saturday before the start of the next school year. (b) During each Christmas school break from the day after school ends until two days before school begins. (c) At such other times as they may agree. (6) The parents shall make shared transportation arrangements for the children during changes of custody. This opinion is filed in support of the order. The parents were living in Perry County when the mother separated in January, 2001, and moved to New Jersey with Scott Barnacz, age 33. They were married in April, 2004. The father married Christan Reigle, age 41, on October 24, 2003. They have lived together since October, 2001, with his three children and her son, Christopher Lavere, age 14. Christan Reigle works part-time as a waitress. For the last four years they have lived in a rented three bedroom two bath apartment in Ickesburg, Perry County. The children attend school in the West Perry School District. Kelsey is in eighth grade, Clayton sixth grade and Kamryn third grade. Kelsey excels at school, Clayton, who can be lazy about getting his homework done, improved at the end of the last school year. Kamryn is doing well. The father worked as a Teamster dockworker for Consolidated Freight for two and a half years. Consolidated Freight then went out of business. The father obtained his CDL license and started driving a truck five years ago. Initially, he was a non-union driver for two different companies. Approximately four and a half years ago, he became a Teamster driver for Yellow Freight Transportation out of its Lancaster terminal. He needed a total of five years to vest his Teamster’s pension. When he started driving for -2- 01-0479 CIVIL TERM Yellow his two and a half years with Consolidated Freight counted toward this period. At Yellow’s Lancaster terminal, the father was on the extra board as a line-haul driver, which means that he was on call twenty-four hours a day seven days a week. When called to work, he had two hours to report. He worked a lot of nights and on many weekends. After six trips he had forty-eight hours off and after twelve trips seventy-two hours off. In 2006, he earned about $63,000 and in 2007 about $67,000. In April 2008, Yellow posted a realignment at its Lancaster terminal which was effective on June 15th and which resulted in a loss of over one hundred positions. In order to ensure that he did not lose his job with Yellow, the father had to bid on another job in another location. Bidding was by order of seniority, and although the father had worked for Yellow for over four years, there were many others who had more seniority. He did not want to take a significant cut in pay, and if possible he wanted to improve his working conditions. Taking those primary factors into consideration, he bid on a position at a Yellow facility in Louisville, Kentucky. It provided him comparable pay working 1 Monday through Friday from 9:00 a.m. to approximately 7:30 p.m. He accepted the 2 position which required that he report for work on July 6, 2008, which he did. The Louisville terminal was the closest to this area which guaranteed forty hours a week with pay comparable to what he was making at the Lancaster terminal. The position in 1 This is a start time position. If Yellow had not realigned its Lancaster terminal, and the father had continued to work there, it would have taken him approximately fifteen years to obtain such a position. 2 He is currently sharing the cost of an apartment rented by another driver. -3- 01-0479 CIVIL TERM Louisville allows him to continue as a Teamster driver and maintain his seniority with Yellow. Contingent on his being able to move his children, the father has found a three bedroom two and a half bath home on 5.6 acres in Salem, Indiana, which is thirty-eight miles from the Yellow terminal in Louisville. He has a commitment for a mortgage. The advantages of living in Salem and commuting to work in Louisville is that Salem has a 3 substantially lower cost of living than in Louisville, with good schools. The father’s wife and children visited in Salem during the third week of August. After she separated from the father, the mother lived in New Jersey for seven years. In 2005, she enlisted in the Army National Guard. She was injured during basic training in Fort Jackson, South Carolina, and discharged for medical reasons on June 9, 2006. In March, 2007, she and her husband moved to Carlisle, Cumberland County. Her husband works for Borders Distribution and she is a machine operator at Carlisle Syntec Monday through Friday from 3:30 p.m. to 11:00 p.m. The mother testified that she moved back to Pennsylvania because she wanted to be closer to her children. When she had the children this summer, her parents cared for them when she was 4 working. LEGAL PRINCIPLES Gruber v. Gruber, In 400 Pa. Super. 174 (1990), the Superior Court of 3 It also has a lower cost of living than in Perry County. 4 Her mother and the father’s mother, who see the children, also live in this area. -4- 01-0479 CIVIL TERM 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 forth Gruber 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." In Collins v. Collins, 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 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 -5- 01-0479 CIVIL TERM child are more closely aligned with the interests 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 , because of the relocation. See Zalenko v. White 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) The father is a hard worker who has progressed from a job on a dock to a CDL truck driver with an established company. His current job with Yellow Freight Transportation provides him substantial income, and now his working conditions have much improved. If the father had not taken the position in Louisville, but gone to work for another trucking company in this area, he would have had to take a substantial cut in pay, would have had much poorer working conditions, and would not have had any seniority. As he testified, he would have had to start out all over again. Also by retaining his position as a Teamster driver, he derives considerable benefit over that of a non-union position. Clearly, the potential advantages of a move to Salem, Indiana, where he will work out of the Louisville terminal, will substantially improve his quality of life over what it would have been if he had not made the move. The father researched and put considerable time into looking at all of the other possible positions there were with Yellow Freight Transportation which would have been closer to this area. None of those positions provided him with the substantial benefits he has at the Louisville terminal. It was a difficult decision for him to move which was brought about by the realignment of the Lancaster terminal. Thus, the move is not a momentary whim. The move will not only protect the father’s economic stability but it has the further benefit of providing him the means to purchase a home in a community where the cost of living is -6- 01-0479 CIVIL TERM less than where he is now living. The protection of this quality of life will benefit Kelsey, Clayton and Kamryn as their interests are closely aligned with the interest and quality of life of their father. Clearly, the integrity of the motive of the father in seeking to move his children who have been in his primary physical custody for over seven and a half years since the mother separated in January, 2001, is sound. We do not question the integrity of the mother in opposing the move since she was able, even when living in New Jersey for seven years, to have regular periods of temporary physical custody that fostered an ongoing relationship with her children. It is interesting, however, that if the mother had not been injured after she enlisted in Army National Guard in 2005, which resulted in her discharge for medical reasons on June 6, 2006, her regular contact with her children would obviously have been significantly decreased. We are satisfied that the order entered on September 2, 2008, provides the mother with reasonable periods of temporary physical custody that will adequately foster her ongoing relationship with Kelsey, Clayton and Kamryn. (Date) Edgar B. Bayley, J. Nathan Wolf, Esquire For Plaintiff Jeanné Costopoulos, Esquire For Defendant :sal -7-