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HomeMy WebLinkAbout97-1168 civilJENNIFER THOMAS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA Mo RUSSELL GIBBONS, DEFENDANT 97-1168 CIVIL TERM IN RE: CUSTODY BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., July '12, 200'1:-- On March 8, 2001, Jennifer Thomas filed a petition to hold Russell Gibbons in contempt of a custody order dated March 23, 2000. On March 15, 2001, Russell Gibbons filed a petition to modify that custody order. The parties were unable to resolve their dispute at a conciliation conference. We conducted a hearing on both petitions on May 31, 2001. Jennifer Thomas, age 31, and Russell Gibbons, age 31, are the parents of Shannon Rae Gibbons, age 12, born August 27, 1988. The parents were married, they separated in 1990, and are now divorced. The mother has been married to Karl Alonzo Thomas, age 31, for four years. They have lived together for ten years. They have two children, Emily, age 8, and Ashley, age 6. The family lives in a two-bedroom apartment in Camp Hill, Cumberland County. The mother is a supervisor at a Ground Round restaurant, where she has worked for four years. She works a 5:00 p.m. to midnight 97-1168 CIVIL TERM shift on an alternating week schedule. The first week she works on Tuesday, Wednesday, Thursday, Friday, and Sunday. The next week she works on Tuesday, Thursday, Friday, Saturday, and Sunday. Her husband has worked for five years in a warehouse of N. B. Liebman Furniture. He works Monday through Friday from 7:00 a.m. until 4:00 p.m. The father lives in a three-bedroom townhouse in Mechanicsburg, Cumberland County. He has been married to Karen Renee Gibbons, age 51, for five years. The father is a service writer for L. B. Smith Ford, where he has worked for five years. He works Monday through Friday from 6:45 a.m. until 5:30 to 6:00 p.m., and one Saturday every four weeks from 8:00 a.m. until 4:00 p.m. His wife has been a housewife since 1997. She suffers from fibromyositis, which causes her pain but she is able to function. She has a daughter Lisa, age 28, and a son Kermit, age 32, who live nearby. When the mother separated from the father, she took Shannon with her. After about five months, during which time the father saw Shannon on a regular basis, the mother asked him to care for her. He did and the mother then saw Shannon on a regular basis. A custody order was entered by consent on October 23, 1993. The father had primary physical custody and the mother had extensive periods of temporary physical custody. A second consent order was entered on May 5, 1997. It provided the mother and father with shared physical custody. The schedule for the mother was expanded by the shared custody order entered by consent on March 23, 2000. Under that order, the mother has Shannon except when she is with her father overnight on -2- 97-1168 CIVIL TERM Monday and Wednesday evenings and on alternate weekends from Friday through Tuesday morning. The father has also been having her six days each month, every other Wednesday, Friday, and Sunday, when the mother is working. The order contains a holiday schedule. A summer schedule provides each parent with three weeks of uninterrupted vacation time with Shannon. On Tuesday and Thursday evenings, Shannon goes to religious meetings with her father and stepmother. Shannon calls her stepmother "mom." The mother testified that Shannon told her that she called her stepmother mom because she was told to. The father and his wife testified that they told Shannon she could call her stepmother whatever she wanted, and that she chose to call her "mom." Karen Gibbons testified that Shannon is "my baby," and she is "her mother when Shannon is under her roof." She participates with the father in disciplining Shannon. She used to spank Shannon until a child and youth worker intervened. She testified that she does not spank Shannon anymore even though the bible says "Don't spare the rod." Shannon just completed the sixth grade in the middle school of the East Pennsboro School District, the district in which the mother lives. She has always gone to school in East Pennsboro. The father lives in the Cumberland Valley School District. Shannon goes to school by bus from her mother's home at 7:10 a.m. If she has slept at her mother's home she gets up at about 6:30 a.m. If she has slept at her father's home, she gets up at about 5:30 a.m. and he drives her to her mother's home on his way to work. Shannon is a good student. She does not participate in extracurricular -3- 97-1168 CIVIL TERM activities. The mother attends all of Shannon's school functions, and she was a presenter on career day. The father attends only the open houses. Shannon has many friends. Shannon has allergies for which she takes several medications. The mother takes her to a family physician that has been caring for her since birth. Recently, the father has taken her to his own family physician. Shannon has missed a significant number of days in school over the years because of illness. In sixth grade, she had five unexcused absences. The mother testified that these absences were caused by the father when he was .late in bringing her to her home to get a bus on school mornings. The mother and her husband have only one car. She was without a car when Shannon arrives after the bus had left because her husband had taken it to his work. The father testified that he was never late in delivering Shannon to her mother's home.' The mother testified that prior to February 20, 2001, she and the father had very good communication regarding Shannon. They were cooperative in making adjustments to the custody schedule for their convenience and when it was in the best interest of Shannon. The mother filed for child support on February 20, 2001. She testified that since then the father's attitude had changed dramatically. He no longer even talks to her. Two incidents occurred that led the mother to file a petition to hold the father in ' In chambers, Shannon stated that she missed school because she and her father woke up late sometimes and her father was late in bringing her to her mother's home. -4- 97-1168 CIVIL TERM contempt of the custody order of March 23, 2000. The first was over the weekend of March 2, 2001, which was the mother's weekend with Shannon. Her husband testified that Shannon argued with her mother on Thursday, and was very disobedient. On Friday, he was preparing dinner and Shannon did not like what he was making. That upset him and he told her if she did not like what they were having for dinner she could call her father. She did and her father came and picked her up. The mother testified that she called the father's home on Saturday and there was no answer. On Sunday, his wife answered and the mother asked to speak to Shannon. The wife hung up. She called again on Monday, and the father told her that he would bring Shannon home that day. However, he did not return her until Tuesday morning before school. The mother testified that when Shannon came home she was angry with her. Shannon told her that she was upset because she knew that she had filed for child support against her father. The mother testified that she had not told Shannon that she had filed for child support. The father testified that Shannon called him on Thursday evening. She was crying and she told him that her stepfather said that he wanted her out of the house. He left work and got her. He testified that Shannon told him that her stepfather said that she was a spoiled brat and an ass. He testified that the mother did not call him on Friday, but that he did talk to her by phone on Saturday morning. She asked him when he was bringing Shannon home. He told her that Shannon did not want to go back and that he would bring her on Monday. It snowed on Monday and there was no school so he took her back on Monday evening. The stepmother testified that she and the father told -5- 97-1168 CIVIL TERM Shannon that they would not send her back to her mother's home unless she wanted to go, and they left it up to her. The father testified that Shannon told him that her mother told her she had filed for child support? The second incident occurred on March 7, 2001. The father was to have Shannon back to the mother's home on Wednesday morning to go to school. He did not bring her back and Shannon missed school. The mother went to the father's house to get Shannon back. She was not there. The mother was fined for not having Shannon in school. The father brought her to the mother's home in time to go to school on Thursday morning. The mother testified that the father told her that he did not bring Shannon to go to school on Wednesday because "her nerves were shot." At trial, the father testified that he kept Shannon out of school in order to take her to see his lawyer because he wanted to have the custody order changed. He did not tell the mother at the time? Shannon is a pleasant young girl whose maturity appears consistent with her chronological age. In chambers, she stated that things had been going along very well until the incident with her stepfather at the beginning of March, 2001. She stated "1 just don't like what has been going on lately and I just want all this to stop." She stated that she has not been getting along well with her stepfather or her mother since then. She 2 In chambers, Shannon stated that it was her father who told her about her mother filing for child support. 3 In chambers, Shannon confirmed that her father took her to see his lawyer. 97-1168 CIVIL TERM feels that she is punished for things she does not do. She stated that she feels like she needs her own room "My mom just needs a bigger house like maybe an extra room." She said she wanted to live with her father. The mother testified that Shannon and her two sisters get along well, albeit with the normal squabbles between siblings. The mother acknowledged that things have been difficult with Shannon since the events in March. She believes that the father and his wife have fomented these difficulties. She believes the custody order should not be changed although she is willing to be flexible during times when she is working. The father testified that he seeks physical custody of Shannon because she has asked to live with him. He suggests that the mother and her husband have threatened and abused Shannon mentally. These allegations are not credible.4 4 An example of the overreaction of the father and his wife to matters concerning Shannon is reflected in the following incident. In chambers, Shannon stated that one time her stepfather came into a bedroom where she was with her two sisters. The mother was in the living room. Shannon had taken off her clothes. Her stepfather saw her and after a few moments shut the door. This occurred over a year ago and she believed that her stepfather apologized to her for the incident. Her stepfather testified . that he went into the bedroom of the girls, where a computer is located, not realizing that Shannon had undressed. He was very embarrassed, left the room, and apologized to her. On the latter occasion when the father's wife was testifying as to why Shannon was not sent home to her mother's on her weekend on March 2, 2001, she stated "We left it up to her. We knew it was her mother's time if she wanted to go. That was fine but we were not going to force her to go back after a man sees her totally unclothed and says he will not leave the room and Shannon asked him to leave the room and he wouldn't. And being an incest person myself, abused as a child, I did not want to introduce her into something like that again just in case." -7- 97-1168 CIVIL TERM CUSTODY A determination of a child's best interest is on a case-by-case basis, and is to be premised upon consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual wellbeing. Alford v. Braxton, 442 Pa. Super. 381 (1995). The general rule is that siblings should not be separated without compelling reasons, although this policy is but one factor to be considered, together with all others, in determining the best interest of a child. See Haag v. Haag, 336 Pa. Super. 491 (1984). The preference of a child in a custody case, although not controlling, is a factor to be considered as long as it is based on good reasons. EAL v. LJW, 662 A.2d 1109 (Pa. Super. 1995). The child's maturity and intelligence must be considered. Cardamone v. Elshoff, 659 A.2d 575 (Pa. Super. 1995). As a child grows older, more weight must be given to a preference. Grieb v. Driban, 312 Pa. Super. 371 (1983). The mother and her husband are working very hard and doing very well raising Shannon, Emily, and Ashley. They testified that they treat Shannon, Emily, and Ashley the same, and we believe them. Undoubtedly, Shannon feels that her space is crowded in her mother's home where she shares a bedroom with her two sisters. It is nice that the father has a separate room in his home for Shannon. If the mother and her husband had more money they might well have a larger home and two cars.~ We "Given what is essentially a shared custody order, the mother does not receive cash child support from the father. She filed the support action on February 20, 2001, which resulted in the father now being equally responsible to share in the cost of medical insurance premiums and unreimbursed medical expenses for Shannon. -8- 97-1168 CIVIL TERM find it was the father who told Shannon that her mother filed for child support. We believe that the father and his wife are encouraging Shannon to live with them. Their agitation has created conflict between Shannon and her mother and stepfather even though there is no serious problem in their relationships. That conflict has influenced Shannon to stating that she wants to live with her father. Shannon is still young and the reasons she gave for her preference are superficial. We do not deem it in the best interest of Shannon to remove her from the regular contact she has with her mother. While the custody schedule is hectic because of the mother's work schedule, Shannon is a good student, who should remain an integral part of her mother's family which includes her two sisters. CONTEMPT The father is in contempt of the custody order of March 23, 2000. There was no legitimate justification for not returning Shannon to her mother's home on what was her weekend on March 2, 2001. The father is also in contempt of the order for not returning Shannon to her mother's home to go to school on March 7, 2001. He lied to the mother by telling her that he did not return Shannon because "her nerves were shot," when in fact he took her to see his lawyer. ORDER OF COURT AND NOW, this ~,,~,1~.., day of July, 2001, IT IS ORDERED: (1) The petition of Russell Gibbons to modify the current custody order of March 23, 2000, IS DENIED. -9- 97-1168 CIVIL TERM (2) Russell Gibbons is adjudicated in contempt of a custody order of March 23, 2000. He shall strictly comply with the order except where the parties agree to make adjustments for their convenience and in the best interest of Shannon. iY~dgar I~. I~'~le'y~ J. Keirsten Davidson, Esquire For Jennifer Thomas Samuel L. Andes, Esquire For Russell Gibbons :saa -10-