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HomeMy WebLinkAbout2003-994 CivilJON S. GAEFKE V. JESSICA J. JOHNSEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-0994 CIVIL CIVIL ACTION - CUSTODY Guido, J., May IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 , 2004 After a hearing on March 5, 2004, we entered an order granting the parties shared legal custody of their son Xavier Gaefke, born October 25, 2001. Father filed the instant appeal on April 5, 2004. We directed that he file a concise statement of matters complained of pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). We also directed that he file a brief along with his concise statement. Father raises the following issues on appeal: 1) our order of shared custody was not in the child's best interest and 2) we erred in not admitting evidence regarding mother' s past mental health diagnosis. ~ He also questions our authority to direct him to file a brief along with the concise statement of the matters complained of on appeal. We will address each issue in the opinion that follows. FACTUAL BACKGROUND The parties began living together in 1998. They separated in March 2003. While they never married, they had two children, Xavier Gaefke, born October 25, 2001 and Alexa Gaefke, born November 1, 2002. Mother had complications during the birth of 1 See "Concise Statement of Matters Complained of on Appeal." NO. 2003-0994 CIVIL TERM Alexa which required a month long period of convalescence. Alexa went to live with the paternal grandparents by whom she was eventually adopted.2 Father is twenty-eight years old and works installing gymnasium equipment. When the parties lived together he worked an inordinate amount of time. He would be away from home overnight on a regular basis. Even when he was home, he spent much of his time working or visiting friends. As a result, mother assumed the role of primary caretaker and nurturing parent for Xavier. After the parties separated, they agreed to share legal and physical custody of the child. Their agreement was incorporated in court orders dated March 7, 2003 and April 28, 2003. Shortly after separation father moved to Washington County, Pennsylvania where he lives with his parents. Mother stayed in the parties' apartment. Father continued with his job installing gymnasium equipment. He is still required to travel away from home overnight. However, his schedule is flexible and he is able to take off work the weeks he has Xavier.3 His parents are available to care for the child when he is required to work out of town. Mother is twenty-three years old and had been a stay at home mom from the time Xavier was born until the parties separated. She has been forced to enter the job market : The parties have differing versions of the circumstances surrounding the adoption of Alexa. We believed mother when she said that she was under the impression that the arrangement would be temporary. We further believe that she did not understand what she was signing at the time custody was transferred to the Gaefkes. While the paternal grandparents may have thought that she did, we are satisfied that she did not. By the time she became aware that the child was going to be adopted, she had neither the resources nor will to resist. Understandably this experience has made her suspicious of the Gaefke's actions (both father and his parents) with regard to Xavier. ~ Even with this partial schedule, father is able to earn a very respectable living. NO. 2003-0994 CIVIL TERM as a result of the separation. She waitressed for a while, but lost that job because of absences occasioned by father's failure to timely arrive for his scheduled periods of physical custody with the child.4 At the time of the hearing mother was working part time at a craft store. She was also actively pursuing a job in a day care facility so that she could spend all day with Xavier. Father has a very loving and supportive extended family living in and around Washington County. Xavier will benefit greatly from his contacts there. Mother has neither the family support nor financial resources available to father. However, she has many friends, especially from her church, who provide a very solid support structure. Further, despite her meager resources, she has provided more than adequate food, clothing and shelter for the child. Both parents are fit. Each is able to provide for the emotional and physical well being of Xavier. While mother has lost her temper with father and his relatives, this is an understandable reaction to their perceived attempts to take her child. We were satisfied that she is a very loving, caring, and patient mother. The child has a strong emotional attachment to each parent. We were convinced that the child's best interests would be served by allowing him to spend as much time as possible with each parent. DISCUSSION Best Interest of the Child. Of course the polestar in custody cases is the best interests of the child. Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001). Those interests are to be "based on 4 Father's work schedule, especially in the summer of 2003, often required him to forego several days of his agreed upon partial custody. NO. 2003-0994 CIVIL TERM consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well being" Wiseman v. Wall, 718 A.2d 844, 848 (Pa. Super. 1998). The Wiseman Court also reiterated the factors we must consider in awarding shared custody: (1) both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; (2) both parents must evidence a continuing desire for active involvement in the child's life; (3) both parents must be recognized by the child as a source of security and love; (4) a minimal degree of cooperation between the parents must be possible. We considered the above factors and determined that shared custody was both feasible and appropriate in the instant case. As we stated on the record at the conclusion of testimony: There's a common misconception that in a custody case what you've got to do is to show how bad the other side is. ! can tell you that I've found as a fact in this case that this is a very lucky young man. He's got two loving and capable of parents. The evidence that I've heard today shows me that I've got two loving, caring parents that are willing to sacrifice for this young man. Both of you are. While we had some concern over the lack of cooperation between the parties, we were satisfied that their devotion to their son would enable them to cooperate much more than the "minimal degree" threshold necessary for the consideration of shared custody.6 The shared custody arrangement we ordered involved a transfer of the child every s Transcript of Proceedings, p. 123-124. 6 We were satisfied that a large part of the conflict between the parties arose because of the custody litigation. Father and his family were taking measures to gain a perceived tactical advantage in their quest for primary physical custody. This was obviously resented by mother who believed that she had lost her daughter through their use of the legal process. NO. 2003-0994 CIVIL TERM ten days.? This arrangement maximizes the amount of time each parent spends with the child, while minimizing the exchanges. In our opinion, this custodial arrangement was best for the child. Failure to Admit Evidence. Father's second issue on appeal is that we "erred in not admitting relevant evidence about mother's past, mother's instabilities, and the like, including mother's mental health diagnosis and other issues .... ,,8 Since we have no inkling what the terms "mother's instabilities", "and the like", and "other issues" refer to, we are unable to address them in this opinion. We will, however, address our refusal to admit mother's "mental health diagnosis" into evidence. During his cross examination of mother, father's counsel asked whether she had ever been diagnosed with a psychotic disorder. She answered that she had not. Counsel then tried to impeach her with an eight year old psychiatric evaluation which purportedly contained such a diagnosis.9 The evaluation occurred when mother was only 15 years old. Furthermore, the preparer of the report was not available to be cross examined. The basis for our ruling was clearly stated on the record. MR. ROM1NGER: Your Honor, I'm going to offer this as Plaintiff' s Exhibit 4 for the purpose of the record so that any reviewing authority in the future would know what document. THE COURT: Mr. Rominger, you can offer that, but you don't have a doctor here. That is hearsay upon hearsay. There is no 7 This was a modification of the previous arrangement which involved a transfer of the child twice in each seven day period. The parties thought this was too much, so they reached an interim agreement the month before the hearing. That agreement provided for an alternating two week shared custody arrangement. However, we agreed with mother that two weeks was an unnecessarily long time for this young child to go without seeing the other parent. 8 Concise Statement of Matters Complained of on Appeal. 9 See Plaintiffs proposed Exhibit 4. NO. 2003-0994 CIVIL TERM opportunity to cross-examine, and it is something that is eight years old. ! understand that. I'm just offering it to - - Then mark it and offer it. I'm asking that it be marked. Its sitting right MR. ROM1NGER: THE COURT: MR. ROM1NGER: there. THE COURT: medical record, without a this transaction? MR. ROM1NGER: On what possible basis is an eight-year-old doctor here to be cross-examined, relevant to Because I'm not offering the record for the truth of the matter asserted. I was asking to approach the witness and cross-examine her on her truthfulness to you today when ! asked her very direct questions, have you ever been diagnosed with, and she says no. THE COURT: If you've got a doctor that's here, ! may look at it. ! understand the basis of your objection. It is overruled. Let's 10 move on. Requiring a Brief in Support of Concise Matters Complained of on Appeal. We directed that father's counsel file a brief in support of his concise matters complained of on appeal. He correctly points out that nothing in the Rules of Appellate Procedure requires him to file such a brief. Nor is their specific authority in the rules which allows us to require such a brief. However, we submit that we have inherent authority to require counsel to supply briefs on any matter before us. We often direct counsel to file such a brief. We do so for several reasons. In the first instance, it assists us in the preparation of these opinions. Additionally, and perhaps more importantly, the requirement discourages counsel from raising, and prevents us from having to address, patently frivolous issues. It has been our experience that some counsel do not do any legal research before preparing their concise statement. Rather, they will raise any issue that comes to mind, even though there is no supporting authority. Since we have been directing that a brief accompany the concise statement, we have seen Transcript of Proceedings, p. 57. NO. 2003-0994 CIVIL TERM a dramatic decrease in the frivolous and boiler plate issues being raised. unless we are directed otherwise, we will cominue our practice. Consequemly, DATE Edward E. Guido, J. Jessica Diamondstone, Esquire MidPenn Legal Services 8 Irvine Row Carlisle, Pennsylvania 17013 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 :sld