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HomeMy WebLinkAbout2008-2929 Civil BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 08-2929 CIVIL KELLY J. DUNN, : Defendant : IN CUSTODY IN RE: OPINION PURSUANT TO RULE 1925 In this custody case, the plaintiff has appealed our order which denied his petition for primary custody of the parties’ minor children and allowed the mother to relocate with the children. Prior to 2007, the parties resided in Smethport, located in McKean County. From the time of the birth of the minor children, Christopher now age thirteen, and Katherine now age nine, Mrs. Dunn stayed home to raise the children. She has been their primary caretaker. Meanwhile, Mr. Dunn continued to work several jobs, including as a paramedic. He works, on average, sixty hours per week. This arrangement reflected the situation acceptable to both parties. In April of 2007, Mr. Dunn moved to Carlisle, in Cumberland County. While in Smethport, Mr. Dunn had an affair with his current girlfriend, Nikki Slocum. He claims that that relationship ended prior to his relocation to Carlisle. In June of 2007, Mrs. Dunn agreed to relocate herself and the children to Carlisle with the understanding that Mr. Dunn had ended his relationship with Ms. Slocum. In the summer of 2007, Ms. Slocum also moved to Carlisle. Incredulously, Mr. Dunn claims that he had no idea that Ms. Slocum was moving to Carlisle at that time, claiming that it was a coincidence. When the parties relocated, they entered into a one-year lease for a townhouse in Carlisle. Prior to the parties’ lease-term ending on June 30, 2008, Mrs. Dunn attempted to obtain a three- NO. 08-2929 CIVIL month extension for her and the children. It was discovered, however, that as early as May of 2008, Mr. Dunn and his girlfriend, Ms. Slocum, had signed an application to lease the parties’ townhouse. Mr. Dunn and Ms. Slocum eventually signed a new lease agreement, thereby effectively preventing Mrs. Dunn and the children from continuing their residence in the home. Over the years, Mr. Dunn has maintained a reasonably good relationship with his daughter, Katherine. Mr. Dunn’s relationship with Christopher, however, has been acrimonious, to say the least. It is clear from the record that Mr. Dunn never learned to communicate with Christopher. He dealt with his son by screaming and yelling at him and using physical force. Presently, Christopher does not wish to see his father or speak to him on the phone. At the same time, Mr. Dunn engaged in physical altercations with Mrs. Dunn. In an undated letter to Mrs. Dunn written sometime after their relocation to Carlisle, Mr. Dunn admitted his shortcomings and expressed the hope that Christopher would not follow in his footsteps. Among other admissions, Mr. Dunn claimed that he was a failure as a father. On April 25, 2008, Mrs. Dunn filed a petition for protection from abuse alleging that Mr. Dunn had grabbed and shoved her causing her bruising and pain. A protective order was subsequently entered by agreement. Forced from the townhouse, Mrs. Dunn lived in a temporary apartment with no ability to locate meaningful employment due to the cost of child care. She has been without family members to support her in this regard as all of her family lives in northern Pennsylvania. Somehow, the children manage to do well in school and Chris has been actively involved in church, soccer and the band. As previously noted, however, he has no relationship with his father. 2 NO. 08-2929 CIVIL Based on the foregoing facts, we entered an order dated November 21, 2008, granting primary physical custody of the children to Mrs. Dunn and permitting her to relocate to the McKean/Potter County area at the end of the 2008-2009 school year. Mr. Dunn would have the children during the summer vacations. Holidays have been distributed equitably on an alternating schedule. In his appeal, Mr. Dunn asserts that we erred in granting Mrs. Dunn permission to relocate with the children and, more specifically, that: (1) Mrs. Dunn did not offer enough testimony to support her claim that relocation would be in the best interest of the children; (2) Mrs. Dunn’s testimony concerning relocation was speculative at best; (3) The testimony established Mrs. Dunn sought to use relocation to alienate the children from Mr. Dunn; (4) The children indicated a clear preference to remain in Carlisle; (5) Mrs. Dunn fails to reinforce the relationship between Mr. Dunn and Christopher; and (6) Our decision failed to properly consider the factors set forth in Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990). In any child custody case, the paramount concern is the best interest of the child and this standard requires a case-by-case assessment of all of the factors that may legitimately affect the physical, intellectual, moral and spiritual well being of the child. Hogrelius v. Martin, 950 A.2d 345 (Pa.Super. 2008). When a custody case includes a request by one of the parents to relocate with the child, then the best interest analysis must incorporate the three factors set forth in Gruber. Klos v. Klos, 934 A.2d 724, 728 (Pa.Super. 2007). Those factors consider: (1) The potential advantage 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 3 NO. 08-2929 CIVIL custodial and noncustodial parent in either seeking the move or seeing to prevent it; and (3) The availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent. Id. quoting Collins v. Collins, 897 A.2d 466, 471 (Pa.Super. 2006). Mr. Dunn first argues that Mrs. Dunn offered no testimony in support of her claim that relocation would be in the best interest of the children nor that she was unable to find suitable housing or employment in Carlisle. We disagree. Mrs. Dunn made a strong case for her return to the county where these children were raised and where her family is located. She testified, credibly, that she was unable to find suitable housing and employment in the Carlisle area particularly because of the high cost of child care and because she had no family in the immediate area to watch the children when she worked. Mr. Dunn has effectively evicted Mrs. Dunn from the townhouse that they rented and is currently leasing the same townhouse with his girlfriend. In a related vein, Mr. Dunn argues that Mrs. Dunn’s testimony concerning relocation is speculative. This defies common sense. Mrs. Dunn intends to relocate to an area where she has lived for years. There is nothing speculative about her knowledge of her hometown area. By relocating, Mrs. Dunn will have available to her a number of close relatives to watch the children so that she can find employment. We do not believe that the Gruber test requires Mrs. Dunn to show that she has a specific job in mind when the benefits of relocating are otherwise so obvious. We believe this is particularly so in a case like this one where the mother was induced to come to Cumberland County under false pretenses and, once here, was effectively abandoned. In the meantime, we do not believe that switching schools after two years in Carlisle will be against the 4 NO. 08-2929 CIVIL best interest of the children. The same educational and social opportunities will exist in McKean County and there they will have even greater emotional support. As noted, Mr. Dunn claims that Mrs. Dunn’s desire is grounded in her desire to alienate the children from Mr. Dunn. The testimony simply does not support this allegation. In fact, to the degree that there is alienation, we are satisfied that it is Mr. Dunn who is responsible. Mrs. Dunn has repeatedly attempted to coerce Christopher into complying with the requirement that he visit with his father. In addition, the testimony does not support Mr. Dunn’s contention that it is the desire of the children to remain in Carlisle. Katherine made it clear that she enjoyed the Coudersport area and had friends there. She did express some concern that moving would cut down on the time spent with her father. Christopher presented as an extremely mature thirteen-year-old. He indicated that he was comfortable in both Carlisle and Smethport. Interestingly, he is close to his older relatives who live on the northern tier. It is clear that they care for him and are supportive. We sense that this is an important emotional benefit in light of Christopher’s estrangement from his father. For all of the foregoing reasons, we are satisfied that the order entered in this case is the correct one. It will, in our opinion, ultimately serve the best interest of these children. March 5, 2009 _____________________________ Kevin A. Hess, J. Nathan C. Wolf, Esquire For the Plaintiff Douglas G. Miller, Esquire For the Defendant 5