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HomeMy WebLinkAbout02-2679 CivilSTEPHEN BALABAN, Plaintiff VS. KIMBERLEY ANNE KATLIC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2679 CIVIL CIVIL ACTION - LAW CUSTODY IN RE: PETITION OF PLAINTIFF TO MODIFY FOREIGN CUSTODY ORDER AND COUNTERCLAIM OF DEFENDANT FOR PRIMARY PHYSICAL CUSTODY BEFORE HESS. J. OPINION AND ORDER This matter initially came before the court on the petition of the plaintiff to modify that portion of a custody order requiring that venue in any custody dispute would lie in either Dade County or Broward County, Florida. This petition was opposed by the defendant who has countered with a petition that primary physical custody of the parties' children should be awarded to her. The facts underlying this dispute are relatively uncomplicated though the resolution is not. The parties first met in Florida in 1988 and began dating. Justin D. Katlic was born September 10, 1989, and Benjamin T. Balaban was born November 15, 1990. The parties married on November 26, 1990. Following the marriage and while the couple continued to reside in Florida, their third child, Savannah K. Balaban, was born September 11, 1993. The parties were separated in June 1996 and eventually divorced in October of 1997. Initially, while residents of Florida, the parties shared physical custody of their children. When Mrs. Rogers, then Kimberley Katlic Balaban, moved to Broward County from Dade County, Mr. Balaban secured an order granting him primary physical custody of the children. In October of 1997, the parties entered into a marital settlement agreement in which Mr. Balaban maintained primary 02-2679 CIVIL physical custody of the three children. The mother had partial custody of the children three nights a week. Mrs. Rogers left Florida for Santa Fe, New Mexico in September of 1999. She returned to Florida in February of 2000 and remained with the children and Mr. Balaban at his residence until June of 2000 when she again left for Santa Fe. One of the children, Benjamin, was permitted to move with his mother and stayed in New Mexico for one full school year. All three children were permitted to spend time together during holidays throughout Benjamin's stay with Mrs. Rogers. Benjamin returned to his father's care for the 2001 school year because he missed his siblings. The children were permitted to travel to New Mexico to see their mother in July of 2001. They returned to their father in August of 2001. Mr. Balaban and the children then moved to Pennsylvania. We are satisfied that the mother was aware of this move. Part of the reason for the father's move to central Pennsylvania was because the children had expressed a preference to relocate to Pennsylvania to be closer to their extended family. In March of 2002, the father sent the mother a stipulation that would allow Pennsylvania to rightfully assume jurisdiction inasmuch as neither party continued to reside in Florida and Pennsylvania was now the "home state" of the children. In the meantime, Kimberley had met Raymond Rogers in Santa Fe in April of 2001. The parties began dating and were married on April 18, 2002, in Santa Fe, New Mexico. Having been notified of the father's attempt to transfer jurisdiction of the custody case to Pennsylvania, the mother undertook to move to Florida. Neither father nor the children learned that the mother had moved until May of 2002. We find the plaintiff' s recitation of subsequent events to be factually accurate. "On June 3, 2002, after mother had refused to sign the stipulation and had moved to Florida in a clearly 2 02-2679 CIVIL surreptitious manner, father filed a petition to modify foreign custody order with the Court of Common Pleas of Cumberland County. The petition itself did not seek to change custody, merely jurisdiction. The petition was served on Mother on June 5, 2002. On June 5, 2002, Mother reported an allegation of child abuse against Father and his brother, William Balaban, based on alleged incidents occurring months earlier, which report was ultimately determined to be unfounded." The parties in this case are both capable parents. It is clear, however, that the father has been the primary caregiver in recent years. What makes the case truly difficult is the strongly stated preference of the children to live with their mother. We have thought long and hard about this case because of the clearly stated desires of the children. It is possible that a court will once again, perhaps in the not too distant future, re-examine this case should the preference of the children continue to be the same as they grow older. In the meantime, however, we have concluded that, as things currently stand, matters can be summarized as described by the plaintiff; namely, "[b]ut for the preference of the children, there is no evidence to suggest that changing custody would be in the children's best interests." (Plaintiff' s Brief, p. 10). Indeed, the paramount consideration in all custody matters is the best interests of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). To ascertain the child's best interests, the trial court is required to "consider all factors which legitimately impact upon the child's physical, intellectual, moral and spiritual well being .... "Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990). Where an existing custodial arrangement has satisfactorily served the best interests of the child, courts have been loathe to disturb the status quo. See Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998). On the other hand, the status quo is only one factor to be considered in custody cases. Id. The case of Com. ex rel. Oxenriter v. Oxenriter_, 3 02-2679 CIVIL 298 Pa. 63,434 A.2d 130 (1981), cited by the plaintiff, is instructive on this point. In that case, the father had been the primary physical custodian of two female children up until the time of hearing when the trial court awarded custody of his daughters to their mother. While acknowledging that both parents were fit, the trial court relied on its belief that the mother would be better able to care for two female children. In reversing, the Superior Court noted that the "greatest deficiency in the lower court's opinion is its failure to fully address the significance of maintaining the status quo on the children's development." Id~. at 133. While there are significant differences between the Oxenriter case and the matter sub judice, there are important parallels. Here, the father has been the primary physical custodian of the children for more than five years. He has provided for the children spiritually, emotionally, physically and financially. He is tireless in his involvement in his children's activities. He borders on the rigorous in insuring regular church attendance and religious instruction. The fact that he may not always spend as much time with the children as they would like appears to be the result of his occupation for he certainly, otherwise, enjoys being a parent. The father has made academics a high priority and the children have received good grades while they are in their father's custody. The father meets with the children's teachers, volunteers his time in school activities and assists the children with their homework. The father also has an extensive family network. The extended family is close and the families are able to come to the aid of each other in times of need. Also (as summarized in the brief of the plaintiff): By all accounts, the children are well behaved, courteous and accomplished in their individual activities. The children's exemplary appearance and behavior in their interview with the court is itself a testament to Father's upbringing of them.. 4 02-2679 CIVIL As noted previously, this matter is chiefly complicated by the stated preference of the children to live with their mother. We have no doubt that the children may find their mother easier to talk to and that she stands in contrast to a father who no doubt is occasionally authoritarian and sometimes distant. There are, of course, many Pennsylvania cases which have put in context the preference of the children. One of the more frequently cited is that ofMcMillen v. McMillen, 602 A.2d 845 (Pa. 1992).~ In this case, the trial court found that both the home of the mother and that of the father were equally acceptable. The court, in awarding custody of the child, Emmett, to his father found that the stated preference of the child was to be given great weight in the context of that particular case. The Superior Court reversed and the Supreme Court, in reversing the Superior Court, noted, inter alia: Although the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child's best interest. The child's preference must be based on good reasons, and the child's maturity and intelligence must be considered. The weight to be given a child's testimony as to his preference can best be determined by the judge before whom the child appears. Our review of the record shows that Emmett's preference to live with his father is supported by more than sufficient good reasons. Emmett testified that his stepfather frightens, upsets and threatens him, and his mother does nothing to prevent this mistreatment. He testified that he does not get along with either his mother or his stepfather, and that he gets along well with his stepmother. His testimony also revealed that his mother and stepfather leave him alone after school 1 Cited supra. 02-2679 CIVIL and that, even though his father and stepmother work, he is never left alone when he is at his father' s home for the summer. Emmett also stated that his mother interferes with his sporting and farming activities and refuses even to watch him play ball. Thus, we find that Emmett's steadfast wish to live with his father was properly considered, and we find no abuse of discretion in the amount of weight afforded that preference. Id., at 847-848 (citations omitted). This case is very different from McMillan. Here, the children do not complain about the kind of negatives which the mother presented in McMillan. Instead, with the exception of Benjamin, the children simply want to give living with mother "a try." We do not mean to suggest that this is a bad thing or that it is out of the question for the future. In the meantime, however, we do not believe that such experimentation is in the best interests of these children. It is true that our expert in this case, Dr. Arnold Shienvold, recommended that the children be given an opportunity to live with their mother. His recommendation, however, was based upon some factual assumptions which are not, in the end, accurate. Most notably, the children do not have the level of supervision in Florida which Dr. Shienvold assumed. In the meantime, as Dr. Shienvold recognized, there are important advantages in the children's living with their father during the school year. The father lives in a very nice neighborhood. The children are within a short walk of their schools and can likewise walk to their activities. Much about the mother's neighborhood is unknown. It cannot be forgotten that life with their mother is better, as far as the children are concerned, precisely because there is the more relaxed atmosphere of holiday and vacation periods. It is not surprising that they find less enjoyable the structure of living with their father during the school year. 6 02-2679 CIVIL As noted by the plaintiff, another important factor for the court to consider is which parent is more likely to encourage contact between the children and the non-custodial parent. 23 Pa.C.S.A. 5303(a)(2). In that regard, the father has a long track record of insuring that the children maintain contact with their mother. This he has done, consistently, even though substantial distances have separated the parties. Both parties concede that this case must undergo the analysis as set forth in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). Gruber has been held to apply to cases even where it is the non-custodial parent who seeks to relocate with the child. See Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998). The Gruber factors are well known: First, the court must assess 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 .... Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it .... Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber, ~ 184,583A.2d ~ 439. In acknowledging that these factors applied where relocation was sought by the non- custodial parent, the court in Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001), went on to note: When the petitioning parent is not the custodial parent and, as here, never has been the primary custodial parent, short of a determination that the custodial parent is unfit or that there is some 7 02-2679 CIVIL unique and highly beneficial benefit to the child in relocation, the burden faced by the non-custodial parent seeking relocation of the child is a very heavy one. Id. at 439. We agree with the plaintiff that there is no evidence that there will any substantial benefit to the children in their move to Florida. There has been no beneficial impact upon the mother's employment situation. Any benefit to the children's education or spiritual or emotional well being is at best speculative. There is no extensive family support network available to the children in Florida. We do not impugn the mother's motives in seeking to give effect to the preference of her children. Nonetheless, her move back to Florida in 2002 was clearly designed to give her better leverage in the custody dispute. If, in fact, her sole motive was to establish a better relationship with the children, she could just as easily have moved from New Mexico to Pennsylvania. We are satisfied that the mother's request for relocation fails under at least two of the three tests in Gruber. In fact, we have a concern even about the third factor. While modern transportation can certainly facilitate visitation arrangements, even over long distances, it is hard to visualize a viable alternative custodial schedule for the father, given the involvement he has had in the lives of the children since their birth. It is unfortunate that these two parents are separated by such distance. The best arrangement would bring them closer together and insure regular and frequent contact on the part of both parents with their children. After the father moved to Pennsylvania, however, the mother chose to relocate to Florida as opposed to Pennsylvania. The best of scenarios is, therefore, not possible. 02-2679 CIVIL Prior to the issuance of this opinion, we entered a temporary order denying the defendant's petition to modify. We now make that order a final order. ORDER AND NOW, this day of August, 2003, the petition of the plaintiff to modify foreign custody order of October 29, 1997, is GRANTED, and the plaintiff shall continue to have primary physical custody of the children of the parties, the defendant shall have rights of partial physical custody and the parties shall continue to share legal custody of the children, as to all of which this court assumes jurisdiction. The counterclaim of the defendant for primary physical custody of the children of the parties is DENIED. BY THE COURT, John C. Howett, Jr., Esquire For the Plaintiff Jeffrey Engle, Esquire For the Defendant :rlm Kevin A. Hess, J. 9 STEPHEN BALABAN, Plaintiff VS. KIMBERLEY ANNE KATLIC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2679 CIVIL CIVIL ACTION - LAW CUSTODY IN RE: PETITION OF PLAINTIFF TO MODIFY FOREIGN CUSTODY ORDER AND COUNTERCLAIM OF DEFENDANT FOR PRIMARY PHYSICAL CUSTODY BEFORE HESS. J. ORDER AND NOW, this day of August, 2003, the petition of the plaintiff to modify foreign custody order of October 29, 1997, is GRANTED, and the plaintiff shall continue to have primary physical custody of the children of the parties, the defendant shall have rights of partial physical custody and the parties shall continue to share legal custody of the children, as to all of which this court assumes jurisdiction. The counterclaim of the defendant for primary physical custody of the children of the parties is DENIED. BY THE COURT, John C. Howett, Jr., Esquire For the Plaintiff Jeffrey Engle, Esquire For the Defendant :rlm Kevin A. Hess, J.