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HomeMy WebLinkAbout2000-204 CivilJACQUELYN A. BEHNEY, Plaintiff V. STEVEN J. BEHNEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-0204 CIVIL TERM CIVIL ACTION - CUSTODY Guido, J., May IN RE: OPINION PUSUANT TO Pa. R.A.P. 1925 ,2004 After a hearing on February 13, 2004, we entered an order granting the parties shared legal custody of their sons. We granted mother primary physical custody subject to periods of partial physical custody with father. Father has filed this timely appeal. We requested that he file a concise statement of matters complained of on appeal pursuant to Pa. Rule of Appellate Procedure 1925(b). He contends that we erred in 1) "not giving due consideration to a shared custody arrangement" and 2) "not giving due consideration to Appellee's failure and/or refusal to cooperate in encouraging the children's relationship with Appellant". ~ PROCEDURAL HISTORY This custody case was commenced by father in 2000. It was joined with the divorce action which had been instituted by mother earlier that year.2 To say that this case has been contentious is an understatement. Since its inception we have convened no less than four conciliation conferences at the request of father or his various counsels.3 In ~ See "Matters Complained of on Appeal", pp. 1, 4. : The initial filings list mother as the plaintiff. Somewhere along the line a filing mistakenly listed father as plaintiff. All subsequent filings have perpetuated that error. Consequently, at the hearing in this matter exhibits marked as "defendant's" "were in fact" "plaintiff's .... (mother's)" and those marked plaintiffs were "defendant's" "(father's)". ~ Father has changed counsel numerous times while mother has maintained the same counsel throughout. NO. 2000-204 CIVIL addition, we have entered seven separate orders dealing with the parties' custodial arrangements. The record is not entirely clear as to how father's request for joint physical custody came before us. In May of 2002 a conciliation conference was scheduled at his request. The conference summary provided in relevant part as follows: The Mother, Jacquelyn A. Behney, with her counsel, John J. Connelly, Esquire; and the Father, Steven J. Behney, who appeared without counsel. Mr. Behney became frustrated during the custody conciliation conference and exited the conference before its conclusion. He had suggested he wanted 50-50 custody with his children. When the Mother would not agree to that proposal, Mr. Behney refused to participate in the conference and would not discuss the terms of summer vacation. The conciliator proceeded with consulting with the Mother and her counsel and the attached recommended order addresses a proposed summer vacation schedule which is somewhat consistent with the agreement the parties reached 4 last summer. On June 7, 2002, we entered the order recommended by the conciliator. The last "Petition for Modification of Custody" was filed by father's current counsel on May 2, 2003. The petition requested that we "establish a summer vacation schedule for 2003".5 A conciliation conference was convened in June 2003, but no report was made to the Court until November 3, 2003. The conference summary explained the delay: The conciliator met with the parties and legal counsel on June 19, 2003, with the understanding that counsel for the parties would notify the conciliator relative to an agreed upon order. The conciliator received a letter of October 28, 2003 from (mother's counsel) with a proposed order, and also provided an October 23, 2003 letter from (father's counsel) indicating his client's agreement of the termsfi See "conciliation Conference Summary Report", dated May 31, 2002. See "Petition for Modification of Custody", filed May 3, 2003. See "Conciliation Conference Summary Report", dated November 3, 2003. NO. 2000-204 CIVIL On November 10, 2003 we entered an order in accordance with the terms of the agreement conveyed by the parties to the conciliator. The order awarded mother primary physical custody subject to a detailed and elaborate schedule of partial custody in father.7 In December of 2003 father's counsel initiated a conference call with the conciliator. Apparently father was no longer happy with the agreement that formed the basis of our order. At the recommendation of the conciliator we entered an order on December 29, 2003 providing that the November 10, 2003 order "shall be considered an interim order".8 We also scheduled a hearing for February 13, 2004. The hearing was held as scheduled. Father rearticulated his desire for a 50/50 shared custody arrangement. We heard from the parties, the children, and a custody evaluator, Dr. Arnold Sheinvold. At the conclusion of the hearing, we entered an order reaffirming the order of November 10, 2003 with a few modifications aimed at encouraging communication and cooperation between the parties.9 FACTUAL BACKGROUND The parties were married on November 30, 1991. They had the two boys who are the subject of these proceedings, Alexander Jacob Behney, born May 7, 1992 and Derek Andrew Behney, born June 22, 1993. They separated after about nine years of marriage. Mother is a forty-five (45) year old school teacher who specializes in teaching reading challenged first graders. She has been the primary custodian of the children since 7 It was an all encompassing order which addressed school year, summer, and holiday schedules for not only the current year but also for future years. 8 See order dated, December 29, 2003. 9 We added the following provision as paragraph 12 to the November order: The parties shall e-mail each other on a daily basis regarding their children. Father shall institute the e-mail on days during which the children spend an overnight with him. Mother shall institute the e-mail on all other days. The other party shall respond. The e-mails shall be saved and presented to this Court as an exhibit in any future custody hearing. NO. 2000-204 CIVIL the parties separated. Although both parties took an active part in the children's lives, mother was the nurturing parent and father was the breadwinner when they were together. Based upon the evidence we heard, and the exhibits we reviewed, we were satisfied that mother's primary concern is and always has been the physical, emotional and psychological well being of her children. For instance, the following exchange between father's counsel and mother was telling: Q. Mrs. Behney, what are your feelings towards my client? A. ! would like to say that ! don't really have any feelings towards him. ! try very hard to be cooperative with him. At times ! feel saddened by the fact that we can't communicate with one another and get along for the sake of the kids.l° Father is also forty-five (45) years old. He is the owner of an oil delivery business. He took an active part in the lives of his children when the parties were together. He has also taken an active role, from time to time, in their lives after separation. However, based upon the evidence and exhibits, we were equally satisfied that father can lose sight of the children's emotional and psychological needs when they conflict with his own. Stated another way, sometimes he is more concerned with money, power and control than he is with the well being of his children. For instance, at one point he cut off all contact with the children for several months in an attempt to get mother to accept his economic terms in the divorce. In addition, he has placed the children in the middle of the divorce dispute on more then one occasion, causing them serious emotional distress. The evidence also makes clear that his concern with a 50/50 custodial arrangement has more to do with his desire to alleviate his support obligation than it does with his desire to spend more time with the children. Transcript of Proceedings, p. 7. NO. 2000-204 CIVIL The children are bright and sensitive young men. They love both parents. Being placed in the middle of the adult disputes has taken, and will continue to take, an emotional toll on these boys. Dr. Arnold Sheinvold is an expert custody evaluator who has testified before this Court on numerous occasions. He conducted an extensive custody evaluation in late 2000 and early 2001, generating a report in March of 2001.~ He also sat through the testimony of the parties prior to presenting his own testimony. He expressed concern regarding father's "very rigid" thinking and his "inability to differentiate his needs from the needs of the children."~2 DISCUSSION Of course the polestar in custody litigation is the best interests of the children Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001). One important factor to be considered in such cases is who has traditionally played the role of primary caretaker Marshal/v. Marshal/, 814 A.2d 1226 (Pa. Super. 2002). In the instant case mother has assumed that role throughout the children's lives. Father does not question mother's abilities as the primary caretaker; he simply wants a 50/50 physical custody arrangement. In his first allegation of error father contends that we did not give due consideration to a shared custody arrangement. In point of fact, we considered it and determined that it would not be in the children's best interest. We had serious doubts about father's ability to adequately meet the emotional needs of his children. When their needs conflict with his own, father gives priority to his own, often to the detriment of the children. Our doubts arose during the testimony of the See Defendant's Exhibit 7. Transcript of Proceedings, p. 109. NO. 2000-204 CIVIL parties and were confirmed by the testimony of Dr. Schneider, which we found to be both credible and compelling. As Dr. Sheinvold noted: Steve has requested equally shared physical custody of his children. It is not felt that such an arrangement is in the children's best interest. First of all, Steve argued that the children want that arrangement. It is felt that the children's desire for such an arrangement was expressed in response to their father's question about it. It also resulted from the children's desire not hurt their father and to be fair. There is no question that the boys love their father and enjoy their time with him. However, the history of this case clearly shows that Jackie has historically been the primary care giver. The boys recognize their mother's greater involvement in their day to day care. They perceive their father as more fun and more active with them. Secondly, two aspects of Steve' s personality and behavior preclude the use of a shared arrangement. First of all, Steve exhibits many of the signs of Attention Deficit Disorder. His shorter attention span, impulsivity and lack of structure do not fit well with the needs of children the ages of Alex and Derek. Additionally, given Derek's special needs for structure and consistency, a shared arrangement is not appropriate. Secondly, Steve's paranoid traits do not lend to an easy, on-going, cooperative relationship with Jackie. In fact, his sense of victimization and persecution reach levels that are disturbing and should be further evaluated. To that end, it is recommended that Steve seriously consider getting further evaluation and treatment for his attention and cognitive symptoms. Lastly, Steve appeared to be very fixated on financial issues in his life. It is hard to ignore the possible motive of reduced child support in Steve's desire for a shared custodial arrangement. His work hours are not really conducive to such an arrangement and his time with the children in the last several years is not consistent with that level of involvement. Furthermore, the types of tasks he did with the children in the past did not span the spectrum of the care they needed. ~3 While those observations were made almost three years earlier, he felt that they were still valid at the time of the hearing. 14 Furthermore, as the evidence showed, Dr. Sheinvoid's observations were validated by the events that occurred subsequent to his report. Defendant's Exhibit 7. Transcript of Proceedings, p. 119. NO. 2000-204 CIVIL Consequently, we were convinced that a shared custody arrangement would not be in the children's best interests. Father's final allegation of error is that we failed to give due consideration to mother's "lack of cooperation" in encouraging the children's relationship with him. We agree that mother's lack of cooperation was not a factor in our decision. This is because we did not find any. To the contrary, we were satisfied that mother fully recognizes the love and affection her sons have for their father. We were convinced that she takes all reasonable steps to assure that he remains an active part in their lives because, as we noted above, she is fully invested in their emotional and psychological well being. We were equally satisfied that father believes mother is the uncooperative party in these custody disputes. This is consistent with Dr. Schneider's observation that father's "sense of victimization and persecution reach levels that are disturbing and should be further evaluated.''~5 In point of fact it is father who is the root of the contentiousness. This lack of cooperation gave us great concern. At the conclusion of the hearing we stated: THE COURT: Let me start by noting that some how, some way, despite the rancor that you tow hold towards each other, you have reared, to this point, two delightful young men, beautiful boys. One thing that was clear to me in questioning them is that they love both of you dearly. At that age, divorce is tough on them, because they can't understand why somebody they love so much couldn't love each other. They're not young men. Unfortunately, to this point, you've treated them that way. My heart broke for them. They were both on the verge of tears at one point. When ! asked them whose decision this is, they both indicated that it was theirs. ! made it very clear to them that it was not theirs that it was mine and mine alone. I'm the one making the call on this. ! don't relish doing this. This is a call the parents should make. When they Defendant's Exhibit 7. NO. 2000-204 CIVIL can't I'll do it, and I'll do it based upon what I think is in the best interests of the children. When ! see these cases - you've been given such a wonderful gift. The love of a child and the gift of a child are just immeasurable, but it's just so fragile. In the grand scheme of things, these are small disputes that you are having. You've got two healthy, beautiful children that don't get in trouble, are active in things, and they both love you very much. What more could you ask for? The fact that the two of you can't communicate with each other verges on criminal. It really does. These boys need you, at the very least, to be able to talk to each other and communicate with each other regarding their well-being. ! would hope, going into the future that you would do that and save a lot of money on legal fees, a lot of anxiety for your children, and will just make life easier all the way around.~6 The comments were addressed to both parties only because we did not want to add fuel to father's sense of victimization. Frankly, however, we were satisfied that mother has been doing her absolute best to cooperate with father for the sake of her children. Those comments, made for the benefit of the children, were aimed directly at father. DATE Edward E. Guido, J. John J. Connelly, Jr., Esquire For the Plaintiff Richard C. Gaffney, Esquire For the Defendant :sld 16 Transcript of Proceedings, pp. 151-152. NO. 2000-204 CIVIL