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HomeMy WebLinkAbout04-1690 CivilCHRISTOPHER STEIMLING, PLAINTIFF V. KELLI FOULTZ, FORMERLY FARRIS, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1690 CIVIL TERM IN RE: OPINION IN SUPPORT OF CUSTODY ORDER DATED MAY 14, 2004 Bayley, J., May 21, 2004:-- Christopher Steimling, age 40, and Kelli Foultz, formerly Farris, age 31, are the parents of Kaitlyn Georgianna Foultz, age 4, born August 18, 1999. The parents were never married. The father rents a home in Carlisle, Cumberland County, where he lives with his wife Sonya, their seventeen-month-old daughter Grace, and Kaitlyn. Kaitlyn is the subject of a custody order entered in the Court of Common Pleas of Perry County on October 8, 2003. The mother and father were awarded shared legal custody. Primary physical custody was awarded to the father. The mother was awarded temporary physical custody "every other weekend as provided in the October 1, 2003, order and at other times as agreed to by the parties, with the exchange being the BiLo in Shermans Dale on Friday and the Wal-Mart in Carlisle on Sunday.''1 On April 19, 2004, the father filed a complaint in Cumberland County seeking permission to move Kaitlyn to West Blocton, Alabama. A hearing on the merits was conducted on May 10, 2004. On May 14, 2004, an order was entered that "[t]he petition of Christopher Steimling to move Kaitlyn Georgianna Foultz, born August 18, 04-1690 CIVIL TERM 1999, to Alabama, I$ DENIED." This opinion is filed in support of that order. When Kaitlyn was born the father contested paternity. For the first fifteen months of her life Kaitlyn lived with her mother and her father never saw her. After the mother filed for child support the father sought and obtained periods of temporary physical custody which lasted until he was awarded primary physical custody on October 8, 2003. Kaitlyn will begin kindergarten next fall. The father has worked as an electrician since 1982. For the last five years he was a non-union electrician for Spectrum Electrical Service in Lewisberry, Pennsylvania. He was earning $15.23 per hour. He was fired on March 25, 2004.: He is drawing unemployment for twenty-six weeks and as of the date of the hearing had received four payments. Despite his skills he has made no serious effort to obtain new employment. Sonya Steimling, age 35, married the father on April 14, 2001. This is her third marriage. She works part-time every other weekend as a clerk at a Cracker Barrel Restaurant in Carlisle. Her family including her mother, father, grandparents, a sister and brother and their children live in the area of West Blocton, Alabama, which is between Tuscaloosa and Birmingham. West Blocton is about a twelve hour drive from Carlisle. Sonya Steimling testified that she wants to move to Alabama to be near her ~ The pick up on Fridays is at 6:00 p.m., and the return on Sundays is at 7:00 p.m. : He testified that he made a complaint to the Department of Labor for what he felt was his employer's wrongfully taking some money out of his earnings checks. He believes that is what prompted his termination. -2- 04-1690 CIVIL TERM family.3 She, the father and Kaitlyn have visited there twice although not since he lost his job. She and the father testified that Kaitlyn liked playing with her Alabama cousins. They testified that they had thought about moving to Alabama before he lost his job. He testified that at this time losing his job is the reason he wants to move to Alabama. He testified that his wife's parents have located a job for him as an electrician in Tuscaloosa, at $17.00 per hour. He has talked to a manager of the company who believes that he will be offered a job but the owner of the company, who will have the final say, has not yet made an offer. The father testified that his wife's parents have also found a home for them to live in West Blocton. While he has seen pictures of it he and his wife have not gone to Alabama to see it. Sonya Steimling testified that she will be able to transfer her employment to a Cracker Barrel in Alabama. She intends to work more hours there than she does now because her family can provide babysitting. The father testified that he would be willing for Kaitlyn to spend "pretty much the whole summer and Christmas holidays" with the mother, and that he "could work out the transportation with her." He states that there is little communication between them. The mother is on two years probation in Perry County for passing bad checks.4 She was living in Shermans Dale before she moved to the home of her boyfriend Mark Beaver, age 30, in Duncannon in November, 2003. They later moved into a larger four 3 The father's relatives live in North Carolina. 4 The mother testified that the father spent time in prison for a felony, which he did not rebut. -3- 04-1690 CIVIL TERM bedroom home, also in Duncannon, which they needed when all of their children visit. The home is on a private lane which is convenient and safe for the children to play outside. The mother previously lived with two other men since Kaitlyn was born. Mark Beaver is employed at a Petro Iron Skillet Restaurant. The mother is a waitress at an Eat-N-Park in Carlisle. Until last October, when all of its employees were laid off, the mother worked for an internet provider, Earth Link, in Harrisburg. She then worked at the Petro Iron Skillet Restaurant where Mark Beaver works. Their romantic involvement required that one of them leave which she did. She then worked at the Camp Hill Diner. She has moved to an Eat-N-Park in Carlisle for higher earnings. She has worked as a waitress since she was a teenager except for the time she spent at Earth Link. The mother is subject to a support order of $65 per week for Kaitlyn which includes arrears. The mother put a child up for adoption eight years ago. She has a daughter Elizabeth, thirteen years old, who lives with her father. The mother has temporary physical custody of Elizabeth every other weekend. Mark Beaver has a nine-year-old son, Christopher, who he has temporary physical custody of every other weekend. Kaitlyn, Elizabeth, and Christopher are all with the mother and Mark Beaver every other weekend. The mother has not missed a period of her temporary physical custody of Kaitlyn, although she and the father have adjusted some of the weekends. The mother's parents live on a farm in nearby Honey Grove, Juanita County. Kaitlyn and her mother often visit her grandparents and they often come to their home. The -4- 04-1690 CIVIL TERM grandparents are supportive of their daughter and are an integral part of Kaitlyn's life. The mother has a brother eight years older than her, another brother four years older, and a sister two years older. They all live in Cumberland County. Both of her brothers have two children. Kaitlyn sees all of them. In Gruber v. Gruber, 400 Pa. Super. 174 (1990), the Superior Court of Pennsylvania set forth three factors for consideration in determining whether a custodial parent should be permitted to relocate children to another state outside 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. In the case sub judice, the father is now the custodial parent. In Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), the Superior Court set forth that it has consistently held that Gruber "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." As to the first Gruber factor, the Superior Court stated in Anderson v. McVay, 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 -5- 04-1690 CIVIL TERM 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 child are more closely aligned with the interest 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.) In the case sub judice, the real motive for the father seeking to move Kaitlyn to Alabama is to placate the desire of his wife of three years to return to where her family lives. He has no family in Alabama and has only been there twice. His stated desire to move is not a result of the thought out plan designed to significantly improve the quality of life for himself and his daughter. The catalyst, as he acknowledged, is having been fired less than two months ago by an employer for whom he worked for the last five years. While he was awarded unemployment compensation, and is in the early stages of receiving it, he has made no substantial effort to obtain new employment in this region. There is no credible evidence that such employment utilizing his skills is not available. In fact, the evidence is to the contrary. If the father is actually offered the job in Alabama that has been sought by his wife's parents, for which he apparently will receive a couple dollars more per hour than he was earning here, there is nothing about it or the circumstances of living in Alabama that will generally or substantially improve the quality of his life or that of Kaitlyn. The mother has had her ups and downs. It appears that financial difficulties -6- 04-1690 CIVIL TERM contributed to the Perry County Court removing her as Kaitlyn's primary custodian? She has, however shown that she can maintain steady employment. The father suggests that her various changes in employment reflect instability. We disagree. It is hardly unusual for waitpersons to frequently change jobs for better earnings, hours and working conditions. While the mother's relationship with Mark Beaver has not been long-term, she is in a more stable situation than she was at the time she lost primary physical custody of Kaitlyn. Kaitlyn's mother was her only custodian for her first year and three months. She was her primary custodian for the next three years six months. The father has only been her primary custodian for the last seven months. The mother is committed to Kaitlyn. She exercises all of her primary physical custody. This little girl and her mother, who has always been an integral part of her life, have a close, loving relationship. Kaitlyn is very close to her maternal grandparents. She sees her sister every other weekend and sees other members of her mother's family who all live in Cumberland County. The mother's heartfelt motives in opposing the father moving Kaitlyn to Alabama are genuine. We believe that such a move would adversely alter her relationship with her daughter. The father and mother are of modest means. Given the distance to Alabama it is unrealistic that regular contact could be maintained. Time spent with Kaitlyn during the summer and at Christmas would not, on the facts 5 The custody order of October 8, 2003, contains the statement that: "The faxed certifications of judgments [against the mother] marked P-6, P-7 and P-8 are hereby -7- 04-1690 CIVIL TERM presented here, constitute a suitable substitute arrangement for maintaining the strong loving relationship between Kaitlyn and her mother. Furthermore, all of Kaitlyn's important contact with her maternal relatives, especially her grandparents and sister, would be limited. Accordingly, the order of May 14, 2004, denying the petition of the father to move Kaitlyn to Alabama, was on balance in the best interest of Kaitlyn. Date Marcus A. McKnight, III, Esquire For Christopher Steimling Rebecca L. Ardoline, Esquire MidPenn Legal Services 3 West Monument Square, Suite 203 Lewistown, PA 17044 For Kelli Foultz (Farris) :sal Edgar B. Bayley, J. made a part of the record in this case." -8-