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MARISSA SEEGER : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION--LAW
:
GEORGE E. SEEGER, JR. :
Defendant : NO. 06-700 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 18, 2009.
In this custody case, the father of a six-year-old child has appealed to the
Superior Court of Pennsylvania from an order of this court which declined his
request that it impose a 50/50 shared physical custody arrangement with respect to
the child. A six-page, 31-paragraph statement of errors complained of on appeal
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has been filed by the father in support of the appeal.
The gist of appellant’s statement appears to be that the court erred in not
crediting the testimony of him and his fiancé tending to show that his petition for
modification of a stipulated custody order should have been granted in the best
interests of the child.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Civil Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is Marissa Seeger (Mother), 31, a resident of Camp Hill,
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Cumberland County, Pennsylvania. Defendant is George E. Seeger, Jr. (Father),
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34, a resident of Hummelstown, Dauphin County, Pennsylvania. Plaintiff and
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Defendant/Petitioner’s Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b).
Whether this statement comports with the conciseness requirements of Pennsylvania Rule of
Appellate Procedure 1925(b)(4)(ii) is beyond the scope of this opinion. Cf. Tucker v. R.M. Tows,
2007 PA Super. 352, 939 A.2d 343; Kanter v. Epstein, 2004 PA Super. 470, 866 A.2d 394..
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N.T. 5, Hearing, April 24, 2009 (hereinafter N.T. __).
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N.T. 4, 7.
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Defendant were married on May 27, 2000. One child, a son, was born of the
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parties’ marriage, Caedon Riley Seeger, whose date of birth is May 1, 2003.
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The parties separated in the fall of 2005, and were divorced on July 30,
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2008. Neither party has remarried, and neither has other children. They entered
into a stipulated custody order dated February 7, 2006, whereby (a) Mother was to
have physical custody on alternating weekends from 5:30 p.m. on Friday until
9:00 a.m. on Monday morning, and on every Monday, Tuesday, Wednesday and
Thursday from 5:30 p.m. until the following morning at 9:00 a.m., (b) Father was
to have physical custody on alternating weekends from Friday at 5:30 p.m. until
Monday at 9:00 a.m., and each Wednesday from 8:00 a.m. until 5:30 p.m., (c) the
grandmothers of the child were to care for him during the day on Monday,
Tuesday, Thursday and Friday, and (d) holidays were shared by Mother and
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Father.
In practice, however, the parties adopted a schedule whereby the
grandmothers were eliminated from the arrangement, and Father’s periods of
partial custody were “every other weekend from Friday evening to Monday
morning,” “entitle[ment]” to “two weeks in the summer,” and the holiday periods
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referred to in the order. Even under that reduced arrangement, Father did not
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exercise all of the partial custody he was entitled to.
4
N.T. 4.
5
N.T. 32.
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N.T. 4-5.
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N.T. 4-5.
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N.T. 5.
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N.T. 4-5.
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Order of Court, February 7, 2006. Legal custody was to be shared by the parties; N.T. 4-5..
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N.T. 4-5.
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N.T. 34-35, 57.
2
Within a week of the entry of the current support order against him, Father
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filed the petition to modify custody which is the subject of this opinion. At an
unsuccessful custody conciliation conference, Father demanded primary physical
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custody; however, subsequent to the conference he indicated he would be
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satisfied with a shared physical custody arrangement of “week on, week off.”
A hearing was held by the court on Father’s petition, on April 24, 2009. At
the hearing, Father presented the testimony of himself and his fiancé, and Mother
presented the testimony of herself; in addition, the parties stipulated to the gist of
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testimony as to their respective parenting skills from several other witnesses.
The pertinent testimony at the hearing which the court found credible may
be summarized as follows: Father is a partner in an automotive repair shop and
lives in Dauphin County, Pennsylvania, in the home of his fiancé, whom he has
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been with for two and a half years. Two daughters of the fiancé, aged 14 and
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16, also live at the residence on alternating weeks. The engagement has not yet
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resulted in a wedding date.
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For economic reasons related to care of the child, Mother, who lives alone
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with the child in Cumberland County, Pennsylvania, works four jobs. Her
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primary employment is that of a legal assistant in a law firm.
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N.T. 47; Defendant’s Petition To Modify Custody Order, filed October 30, 2008.
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Custody Conciliation Conference Summary Report, dated February 9, 2009.
15
N.T. 22.
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N.T. 31, 89.
17
N.T. 7, 23.
18
N.T. 13.
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N.T. 23.
20
N.T. 12.
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N.T. 36, 46.
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N.T. 32.
23
N.T. 19.
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N.T. 5, 36.
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The child is currently in kindergarten in a Cumberland County school
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district. Father does not dispute that the child is “happy” and “does well,” and
that Mother is a “good mother” and does a “very good job” as his primary
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custodian.
Prior to the parties’ separation, Father was only minimally involved in
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caring for the child, and this pattern has continued since the parties’ separation.
This situation was described in testimony of Mother, which the court found
credible:
Q Very quickly, Ms. Seeger, I want to just cover with you when
you and Mr. Seeger were together how Caedon was cared for. Who was
responsible for him when he was an infant and toddler?
A I was.
Q Did Mr. Seeger help in any way?
A He was very minimally involved. It was usually at a lot of
insistence. He was pretty much doing his own thing.
Q Are you talking about just everyday things with Caedon?
A Correct.
Q Everything from diapers, feeding him, bathing him, so on,
and so forth?
A Yes. I scheduled all of the doctor’s appointments I took care
of everything.
Q Okay. You said he did his thing. While you were home with
your son Caedon, what type of things did Mr. Seeger [d]o?
A When he wasn’t working, he was racing, working on his race
car. He was working on his brother’s race cars. They were racing at the
time. Golfing with friends. He would go out at night with his friends.
There were many evenings that he did not come home until 3 or 4 in the
morning because he was out with his friends.
Q After you separated, and over the past three years, have you
seen a difference in that attitude or way of life where he did his thing and
you and Caedon did yours?
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N.T. 9.
26
N.T. 14.
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N.T. 41-42.
4
A No. It’s basically been the same situation since Caedon was
born from the very beginning. Mr. Seeger has basically lived his life and
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lets Caedon in it when it suits him.
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Mother continues to take care of all of the child’s illnesses, registers him
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for his extra-curricular activities and pays for them, buys his sports equipment,
gives up part of her salary each year to leave the workplace to accommodate his
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needs, and serves as a volunteer soccer coach.
Father, on the other hand, does not attend the child’s special events at
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kindergarten, has never registered the child for anything, took no interest in
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selecting the child’s daycare, refused to contribute to his daycare expenses
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notwithstanding his view that the activity benefited the child, and does not help
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Mother with her parental duties when she needs it. An example of the latter was
recounted in Mother’s testimony as follows:
. . . I was in a car accident, and I suffered a concussion. I was not
supposed to drive or to work for two days. I asked Mr. Seeger if he could
please pick up Caedon for me and bring him home to me, and he said he
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couldn’t, he had other arrangements.
In addition, Father involves the child in his parental dispute with Mother.
Thus, he tells the child that his mother takes all Father’s money, as a result of
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which the child has expressed a desire to give Father money himself. He tells the
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N.T. 42.
29
N.T. 50.
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N.T. 52-53.
31
N.T. 53.
32
N.T. 52.
33
N.T. 52.
34
N.T. 49.
35
N.T. 53.
36
N.T. 44.
37
N.T. 46.
38
N.T. 51, 55.
39
N.T. 51.
40
N.T. 60-61.
5
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child that his mother needs to give him clothes. He advises the child to tell his
mother that she should give Father more time so that they can avoid court
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proceedings.
Furthermore, Father does not exercise fully the custodial periods already
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available to him. When he does exercise a period, the child is often left with
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Father’s parents.
Finally, with respect to Father’s motivation in seeking a shared custody
arrangement the court was unable to avoid the conclusion that it was primarily, if
not entirely, financial. His history in this regard was described, credibly in the
court’s view, by Mother as follows:
A . . .Every time there was an issue about support, he would
harass me about custody, and he made several claims, and threatened me
over the past 3 years, that he would . . . file for custody if he felt the
support was too high or if he wouldn’t get a decrease as to what he wanted
it to be.
Q So that is something that has been consistent over the 3 1/2
years?
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A Very consistent.
Father’s petition for modification of custody which is the subject of this
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opinion followed immediately an increase in his support obligation. The
increased obligation resulted from Mother’s inability, after 10 months, to continue
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to shoulder the $135.00 per week daycare expense entirely by herself.
Following the hearing, the court entered an order which did not afford
Father the shared physical custody arrangement demanded, but, inter alia, did
expand his Christmas period of physical custody, extended his alternating
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N.T. 60.
42
N.T. 61.
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N.T. 34-35, 57.
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N.T. 58.
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N.T. 46-47.
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N.T. 46-47.
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N.T. 46.
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weekend periods during the school year to Tuesday when Monday was a federal
holiday, and provided a more conventional summer schedule, increasing his
summer vacation periods from a total of two weeks to a total of thirty days.
Specifically, the order provided as follows:
1. The parties shall have shared legal custody of the child. Each
parent shall have an equal right, to be exercised jointly with the other
parent, to make all major non-emergency decisions affecting the child’s
general well-being, including, but not limited to, all decisions regarding
his health, education and religion. Pursuant to the terms of 23 Pa.
C.S.§5309, each parent shall be entitled to all records and information
pertaining to the child, including, but not limited to, medical, dental,
religious or school records, the residence address of the child and of the
other parent. [T]o the extent one parent has possession of any such records
or information, that parent shall be required to share the same, or copies
thereof, with the other parent within such reasonable time as to make the
records and information of reasonable use to the other parent.
2. Primary physical custody of the child shall be in Plaintiff, the
mother.
3. Temporary or partial physical custody of the child shall be in
Defendant, the father, at the following times:
a. During the school year,
(1) Every other weekend, from Friday at
4:45 p.m. to Monday at 8:00 a.m.; provided, that
where such a Monday is a federal holiday the
father’s period of partial [custody] shall extend
to Tuesday at 8:00 a.m.;
(2) During Christmas vacation, from
Christmas Day at 3:00 p.m. until December 27
at 7:30 p.m.[;]
(3) On Thanksgiving Day, from 3:00
p.m. until 7:30 p.m.;
b. During the summer, for three 10-day periods at the
beginning of June, July and August.
4. Nothing herein is intended to preclude the parties from deviating
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from the terms of this order by mutual agreement.
DISCUSSION
“[T]he paramount concern in both custody and visitation cases . . . is the
best interests of the child.” Douglas v. Wright, 2002 PA Super 181, ¶7, 801 A.2d
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Order of Court, April 27, 2009.
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586, 591 (citations omitted). Factors to consider in determining the best interests
of the child include the child’s physical, intellectual, emotional and spiritual well-
being. Id.
“When a child receives love, guidance, companionship, and direction from
a parent on a consistent basis, a firm foundation is being laid for the child’s future
healthy development.” Gonzalez v. Gonzalez, 337 Pa. Super. 1, 8, 486 A.2d 449,
452 (1984). In this regard, “the trial court must give positive weight to the parent
who has been the primary caregiver,” even if both parents are fit. Id. 337 Pa.
Super. at 8, 486 A.2d at 453 (citing Hugo v. Hugo, 288 Pa. Super. 1, 430 A.2d
1183 (1981)).
The trier-of-fact in a custody case, as in other cases, is charged with
responsibility to assess the credibility of witnesses, and is free to believe all, part
or none of the evidence presented. Johnson v. Lewis, 2005 PA Super. 86, ¶11, 870
A.2d 368, 372.
In the present case, evidence found credible by the court as to (a) Plaintiff’s
exemplary history as a selfless primary caretaker of the child, (b) the product of
this care in terms of a happy and successful child, (c) Defendant’s history of
minimal involvement in the child’s upbringing, involvement of the child in
parental disputes, and failure to utilize custodial periods available to him, and (d)
the financial motivation for his petition for modification led the court to decline to
impose the 50/50 custodial arrangement requested by Defendant and to fashion the
order entered.
In doing so, the court in no way questioned Defendant’s love for the child
or the potential of Defendant’s fiancé to be a good stepmother to the child, nor
disregarded the testimony of either. On the other hand, in its capacity as trier-of-
fact the court was not required to accept Defendant’s assurance that his request for
shared custody was non-retaliatory and was not inspired by the financial benefit
such an arrangement would accord him.
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BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Bradley L. Griffie, Esq.
200 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff
Mark T. Silliker, Esq.
5922 Linglestown Road
Harrisburg, PA 17112
Attorney for Defendant
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