HomeMy WebLinkAbout2008-6253 Civil
: IN THE COURT OF COMMON PLEAS OF
GINA K. DRAGOVICH, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. :
TROY N. DRAGOVICH, :
Defendant : NO. 08-6253 CIVIL TERM
ORDER OF COURT
th
AND NOW
, this 10 day of July, 2009, after consideration of Plaintiff's
Complaint requesting primary custody and permission to relocate,
IT IS HEREBY ORDERED
that:
1. Plaintiff shall have primary physical custody of the children.
2. Plaintiff shall be permitted to relocate to Virginia with her husband.
3. The parties shall have shared legal custody.
4. On or before August 14, 2009, the parties shall submit to the Court a proposed
detailed order addressing physical custody pursuant to the following general court-
required provisions:
a.) Father shall have physical custody every other weekend, and this shall
include the three-day holiday weekends (e.g. Martin Luther King Day,
President’s Day, etc.)
b.) A major holiday schedule which divides the major holidays equally for
Thanksgiving, Christmas, and Easter.
c.) Father shall have custody of the children during the summer school recess
subject to Mother having two weeks vacation time with proper prior notice.
d.) The custody exchange point shall be in Thurmont, Maryland.
By the Court,
M. L. Ebert, Jr., J.
James W. Abraham, Esquire
Abraham Law Offices
45 East Main Street
Hummelstown, PA 17036
717-566-9380
Attorney for Plaintiff
Susan Kay Candiello, Esquire
4010 Glenfinnan Place
Mechanicsburg, PA 17055
717-724-2278
Attorney for Defendant
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: IN THE COURT OF COMMON PLEAS OF
GINA K. DRAGOVICH, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. :
TROY N. DRAGOVICH, :
Defendant : NO. 08-6253 CIVIL TERM
OPINION AND ORDER OF COURT
EBERT, J., July 10, 2009 –
In this custody case, Plaintiff, Gina K. Dragovich (“Mother”), and Defendant, Troy N.
Dragovich (“Father”), each seek primary physical custody of their three children. Mother has
also requested permission to relocate to Virginia with her children. Father contests relocation
and seeks primary physical custody so that the children can remain living in Cumberland County
and so that they can remain in the Camp Hill school district.
STATEMENT OF FACTS
Mother resides at 1910 Enfield Street, Camp Hill, Pennsylvania. Father resides at 206
1
Wertz Avenue, Mechanicsburg, Pennsylvania. Mother and Father separated in March 2007.
The parties’ divorce was finalized on December 18, 2007. The parties share legal custody of
their three children, Nicholas Patrick Dragovich (“Cole”), born 12/01/1997, Kayla Jean
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Dragovich, born 03/05/2000, and Cassie Lynn Dragovich, born 06/05/2001. While Father has
been very involved and has had much contact with the children, Mother is considered to be the
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primary caregiver. Mother plans to marry John Randall Knaub (“J.R.”), who resides in
1
Transcript, Apr. 1, 2009, p. 6. (hereinafter Tr. at ___)
2
Court Order, Dec. 15, 2008, ¶ 2.
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The wedding was planned for June, 2009.
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Manassas, Virginia and wants to relocate to Virginia with the children. Mother seeks primary
physical custody and wants to let Father continue to have generous visitation privileges
accommodated by meeting approximately halfway between Pennsylvania and Virginia to
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exchange the children. Thurmont, Maryland, is approximately 53 miles from Father’s home in
Mechanicsburg, Pennsylvania.
Mother was a stay-at-home mother throughout the marriage and occasionally worked
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part-time. Mother currently works from her home as a day care provider and provides day care
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for three children in addition to her own children. Father has been employed at Office Max in
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Carlisle, Pennsylvania since October, 2008, and is currently the store manager there. He was
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unemployed from February through October 2008. Father’s annual salary is approximately
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$62,000. Mother’s fiancé is retired from the Coast Guard and currently works for the
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Department of Homeland Security Coast Guard Investigative Services. He will not be able to
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find a comparable job in the Camp Hill area. His annual income, which includes the salary
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from his civilian job and his Coast Guard pension, is approximately $120,000. Mother has no
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extended family in Camp Hill, and Father only has a brother who lives in the area. All other
extended family are located two to three hours away.
4
Tr. at 44.
5
Compl. at ¶ 9, filed Oct. 21, 2008.
6
Tr. at 50.
7
Tr. at 5.
8
Tr. at 4.
9
Tr. at 62.
10
Tr. At 62-63.
11
Tr. at 115.
12
Tr. at 30.
13
Tr. At 52-53.
14
Tr. at 30.
15
Tr. at 37.
16
Tr. at 84.
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All three children were questioned about which parent they would prefer to live with.
Cole, eleven years old, said that he would like to “take turns at houses” and spend one week with
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mom and one week with dad. When asked again to choose one or the other, he said he would
rather live with his dad, because he wants to stay here and his dad lives here. Kayla, nine years
old, says she would rather live with her mom. When asked why, she replied “I just took a
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random guess”. She also said she wouldn’t want to change schools. Kayla said that it was
okay with her to see her friends on the weekends if she did indeed move to Virginia. Cassie,
eight years old, first said she didn’t know who she would rather live with. When asked again,
she said her dad. When asked why, she said it was because she has “two dogs there and a
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hamster there.” She also said that she didn’t want to go to a different school.
There is no question that Father has been significantly involved in the children’s lives.
But it is clear that Mother has been the primary caregiver, both during the marriage and since the
separation. Father has never taken care of the children full-time since the separation, and has
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never had them for more than an extended weekend. Until Mother planned to relocate, Father
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never asked for primary custody. Cole has educational developmental delays and has received
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speech and occupational therapy. Mother was primarily involved with Cole’s therapy, and
Father rarely participated in therapy sessions.
PROCEDURAL HISTORY
Mother and Father separated in March 2007. The parties’ divorce was finalized on
December 18, 2007. On October 21, 2008, Mother filed a Complaint requesting 1) shared legal
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Tr. at 120.
18
Tr. at 124.
19
Tr. at 128.
20
Tr. at 13.
21
Tr. at 14.
22
Tr. at 8.
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custody, 2) primary physical custody, 3) permission to relocate to northern Virginia, and 4)
partial custody and visitation rights for Father including maintaining his year-round alternate
weekend visitation schedule and giving him alternate weeks during the summer. On November
24, 2008, Father filed an Answer to Plaintiff’s Custody Complaint and New Matter requesting
shared legal custody and primary physical custody of the children. A Custody Conference was
held on December 2, 2008. On December 15, 2008, this Court issued an Order granting shared
legal and physical custody of the children, and specifying terms for physical custody. A hearing
was scheduled for April 1, 2009 for the Court to rule on physical custody of the children and to
consider the relocation request from Plaintiff to move to Virginia with her children.
DISCUSSION
A. Standard of Review – Custody and Relocation
The paramount concern in a child custody case is the best interests of the child, based on
a consideration of all factors that legitimately affect the child's physical, intellectual, moral and
spiritual well-being. Swope v. Swope, 689 A.2d 264, 265 (Pa. Super. 1997) (quoting E.A.L. v.
L.J.W., 662 A.2d 1109, 1112 (Pa. Super. 1995)). Relocation requests present unique questions
and require special consideration.
The Pennsylvania Superior Court acknowledges that the best interests of the child must
be preserved, but also recognizes that divorced parents must be free to live their own lives. As
the Court stated in Gruber:
Adjustments and accommodations must be made as a result of the divorce, the
whole point of which was to permit each parent to go his or her own way. Within
reason, both parties must be permitted to do so, and the child's best interests must
be served within that context.
Gruber v. Gruber, 583 A.2d 434, 437-438 (Pa. Super. 1990) (quoting Helentjaris
v. Sudano, 476 A.2d 828, 833 (N.J. Super. Ct. App. Div. 1984)).
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Gruber provides specific factors to consider when evaluating relocation requests that will
affect children. Gruber, 583 A.2d 434. The Pennsylvania Superior Court has consistently ruled
that courts must incorporate the Gruber factors when determining the best interests of the
children. Hogrelius v. Martin, 950 A.2d 345 (Pa. Super. 2008). Those factors include:
(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 noncustodial parent in
either seeking the move or seeking to prevent it; [and]
(3) the availability of realistic, substitute visitation arrangements which will
adequately foster an ongoing relationship between the child and the non-custodial
parent.
Id. (citing Klos v. Klos, 934 A.2d 724, 728 (Pa. Super. 2007).
Incorporating these factors in reviewing the present request for relocation, we find that
the best interests of the children are served by approving Mother’s proposed move and awarding
Mother primary physical custody. The proposed move has significant economic and quality of
life improvements for Mother, the custodial parent in this case, and it is clear that the move is not
a “momentary whim” on Mother’s part. She has been dating J.R. since October 2007, and out of
concern for her children, she did not introduce him to her children until January 2008. She
appears to have considered the decision seriously, and while it does benefit her, she clearly
considered her children when making the decision.
In considering the motives of each parent, we find that while Mother does want to move
to be with her new husband, she also believes that this will provide the best life for her and her
children. Father contests the proposed move because he wants to maintain a consistent
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relationship with his children, but keeping the children in Pennsylvania will allow him the
convenience of having reliable and free child care with Mother nearby.
We also find that the proposed visitation schedule with Father is adequate and will still
allow the children to maintain a meaningful, ongoing relationship with Father. Father can still
have the children every other weekend, to include extended long weekends during the school
year, and for a majority of the time during the summer. The exchange point will be in
Thurmont, Maryland, which is only 53 miles from Father’s home.
Father erroneously argues that this Court should rely on Speck v. Spadofore, 895 A.2d
606 (Pa. Super. Ct. 2006), a case in which the Pennsylvania Superior Court found the trial
court’s approval of relocation inappropriate. The facts of Speck are easily distinguished from
those in the present case. In Speck, the mother intended to move more than 200 miles and more
than four hours away. More importantly, the child in Speck would have been separated from his
siblings and all of his extended family. The court there found no improvement other than in the
mother’s personal relationship. The court found no other advantages and no significant benefit
to the child.
In the present case, Mother plans to move approximately 125 miles away. This is a trip
of approximately two and one half hours away. The Court’s proposed meeting point in
Thurmont, Maryland gives Father the advantage of only traveling 53 miles while mother would
have to drive 72 miles. The children in the case at bar are not being separated from each other
and will not likely lose any significant contact with extended family. There is a clear economic
benefit to the mother which will also obviously benefit the children. They will be in a situation
with more predictable income, will be in a supportive family environment under the direct care
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of their mother on a daily basis, and will still be able to maintain a healthy relationship with
Father.
B. Preferences of the Children
The express wishes of a child are not controlling in custody decisions, but such wishes do
constitute an important factor that must be carefully considered in determining the child's best
interest. Cardamone v. Elshoff, 659 A.2d 575, 582-583 (Pa. Super. 1995) (citing McMillen v.
McMillen, 602 A.2d 845, 847 (Pa. 1992)). The child's preference must be based on good
reasons, and the child's maturity and intelligence must be considered. Id. (citing McMillen, 602
A.2d at 847).
It is clear to this Court that all of the children love both of their parents very much and
that they had a difficult time choosing with whom they would rather live. Two of the children
had to be asked twice before they indicated a preference. Those two said they wanted to live
with their father, the other said she wanted to live with her mother. None of the children want to
change schools. Cole’s preference seemed to be more related to his desire to stay in Camp Hill,
not necessarily to live with his dad. The children’s preferences are to be given some weight, but
we must also consider the reasons given as well as the child’s maturity and intelligence. It is not
unusual for a child not to want to change schools, as it can be an intimidating and scary process.
One child indicated that her reason for wanting to stay with her dad was because her dogs and
hamster were there. We do not find any reasons given by the children to be convincing enough
to warrant a change of our decision.
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C. Improvement in Children’s Quality of Life
Our Superior Court has recognized that “when relocation is likely to result in a
substantially enhanced quality of life for a custodial parent, often the child's best interests will be
indirectly but genuinely served.” Gruber v. Gruber, 583 A.2d 434, 438 (Pa. Super. 1990). In
this case, it is clear that while one benefit is the improvement of the Mother’s personal
relationship, it is certainly not the only benefit. Relocation for Mother will eliminate her
expenses for rent and other household expenses. Her new husband’s income exceeds what she
currently makes on her own, exceeds Father’s income, and exceeds the income she and her
husband earned together while they were married. Father has failed to make alimony payments
for more than a year, and he let the insurance coverage on the children lapse for three months.
Schools in the Prince William County school district, which children would attend if they
were to move to Virginia, are at least comparable if not better than their current schools in Camp
Hill. The children would be covered under J.R.’s medical insurance plan if they move with him
and Mother to Virginia. If they move to Virginia, the children would each have their own room.
Kayla and Cassie currently share a room. If Father is awarded primary custody and Mother still
relocates to Virginia, Father will have to actually move into the Borough of Camp Hill to keep
the children in the Camp Hill school district. This presents another uncertainty in the children’s
living situation should they stay with Father.
The overall situation for the children will indeed improve if they move to Virginia.
While they may not be able to see Father as frequently, the children will still have significant
meaningful time with him and we do not believe that their relationship with him will suffer as a
result of the relocation. They have no significant extended family in the Camp Hill area, and
would still likely have the same amount of contact with extended family as they do now. This
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Court believes that although the children obviously do have connections to this area through
church, school, and sports, by and large these connections can still be maintained, albeit on a
more limited basis.
We believe that changing schools and moving to Virginia will not be a detriment to the
children. These children are very resilient and this Court believes that they will have no problem
adjusting to and thriving in a new environment. Mother’s and children’s relationship with J.R.
seems to be stable and supportive, and it is clear that the children will be well-provided for in
their home. Father has had inconsistent employment and let the insurance lapse on the children.
He was laid off from his last job due to poor sales, and continues to work in retail which is likely
to be unpredictable in this economic environment. While he argues that the children will be in
an unstable environment with Mother and J.R., in fact, his situation seems to be one that would
be more unstable for the children.
D. Educational Opportunities
Cole has had developmental difficulties and Father is concerned about Cole’s transition
to a new school. Camp Hill’s program has been good for Cole and Father is worried that he will
not receive the same level of support at a new school. Mother was the primary support for Cole
during his therapy, and we are confident that she will ensure that he receives the services he
needs. Mother has stated that Benton Middle School, where Cole will attend if he moves to
Virginia, has a specific program to help transition special needs children. This Court is satisfied
that the Prince William County school district will be able to provide the same or better support
to Cole.
The elementary school that Kayla and Cassie would attend in Virginia is larger, but has a
comparable student-teacher ratio and is rated higher in reading and math levels than their current
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elementary school in Camp Hill. We are satisfied that the children will have as good or better
educational opportunities in their new schools.
Both parents in this case are deeply concerned for their children, and the children have
positive relationships with both parents. Relocation can be difficult for children, but it is
sometimes necessary for parents to be able to continue their lives. As long as relocation supports
the best interests of the children, and does not solely benefit the custodial parent and is not a
“momentary whim”, we must permit the relocation and adjust the custody arrangement
accordingly. We find that, taking into consideration all of the relevant factors, Mother’s
proposed relocation will provide a better living situation for her and her children. The relocation
will not place unreasonable obstacles on Father to continue shared custody, and, accordingly, the
following order shall be entered:
ORDER OF COURT
th
AND NOW
, this 10 day of July, 2009, after consideration of Plaintiff's
Complaint requesting primary custody and permission to relocate,
IT IS HEREBY ORDERED
that:
1. Plaintiff shall have primary physical custody of the children.
2. Plaintiff shall be permitted to relocate to Virginia with her husband.
3. The parties shall have shared legal custody.
4. On or before August 14, 2009, the parties shall submit to the Court a proposed
detailed order addressing physical custody pursuant to the following general court-
required provisions:
a.) Father shall have physical custody every other weekend, and this shall
include the three-day holiday weekends (e.g. Martin Luther King Day,
President’s Day, etc.)
b.) A major holiday schedule which divides the major holidays equally for
Thanksgiving, Christmas, and Easter.
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c.) Father shall have custody of the children during the summer school recess
subject to Mother having two weeks vacation time with proper prior notice.
d.) The custody exchange point shall be in Thurmont, Maryland
By the Court,
M. L. Ebert, Jr., J.
James W. Abraham, Esquire
Abraham Law Offices
45 East Main Street
Hummelstown, PA 17036
717-566-9380
Attorney for Plaintiff
Susan Kay Candiello, Esquire
4010 Glenfinnan Place
Mechanicsburg, PA 17055
717-724-2278
Attorney for Defendant
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