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HomeMy WebLinkAbout1997-2460 Civil BRETT A. KETTERER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NICOLE L. SEIFERT, DEFENDANT 97 -2460 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., September 12, 2005:-- Brett A. Ketterer and Nicole Seifert, both age 34, are the parents of Shane N. Ketterer, age 14, born February 8, 1991. The mother filed a petition to move Shane to California. The father objects. A hearing was conducted on September 1, 2005. The parents separated in September, 1993, and were divorced in 1994. The father lives in Etters, York County, Pennsylvania with his wife Tammy, her daughter Alessa, age 12, and their son, Bailey, age 7. He is an electrician/superintendent working out of a union for a local company. He earns approximately $60,000 a year. His wife works as a paralegal in Harrisburg. The mother has been married to Richard Seifert for nine years. They live with Shane and their child Morgan, age 8, in White Rock Acres in Boiling Springs, Cumberland County. The mother works part-time as a real estate agent for Exit Realty in Camp Hill. In 2004, she earned $19,400 in commissions. Through the end of August 2005, she has earned $20,033 in commissions. She pays some expenses from her commissions. She receives $578 a month from the father on a current child support order. Pursuant to a custody order, the mother has primary physical custody of Shane. He is with his father every other weekend from Friday evening through Sunday 97 -2460 CIVIL TERM evening, most Tuesday evenings, some holidays, and in alternate weeks during summer school vacations. Shane is a loving, kind, happy boy. He takes medication for attention deficit disorder that affects his reading. He is starting ninth grade in the Cumberland Valley School District.1 He is an average student who has an Individual Education Plan (IEP) that has been in place, as adjusted, for several years. Under this program, his last school year extended into the beginning of the summer. The requirements of the IEP were reduced at the beginning of the 2005-2006 school year. Both parents have been actively involved with Shane's schooling. Shane is a little shy, and appears to be a "young" fourteen. He has a loving, close relationship with his mother, father, siblings and step-parents. Each family unit is a caring, protective environment. Both parents acknowledge that the other is a good parent and that Shane has a close relationship with each. The mother has always been Shane's primary caretaker. The father has always had significant involvement in his life. The parents are cooperative and flexible in working with each other, and that has made the current custody arrangement work well. Richard Seifert worked for approximately eight years for Gateway Construction in Enola. He started as a carpenter, and for five years was a construction superintendent. During this employment there were occasional, temporary lay-offs for lack of work. In 2004, he worked out-of-state for approximately six months, during -2- 97 -2460 CIVIL TERM which he came home on weekends. He was temporarily laid-off in mid-February 2005. While drawing unemployment, he put out resumes for other superintendent jobs in this area, but nothing materialized. The mother's father works in land acquisition, and two of her uncles own their own construction firms in Orange County, California, which is south of Los Angeles. Seifert went to California in May, sought their advice on employment, and started a job on June 16 as an assistant superintendent with another construction firm, D.R. Horton. He is staying with his father-in-law in Anaheim. He was not home until the custody hearing on September 1. The mother has about thirty family members living in Orange County, California. She and her husband have thought about moving there for several years. They want to purchase a home in Riverside County, which is adjacent to Orange County, and is a short commute to the construction site where he is now working.2 The mother has been to school districts in the area and narrowed the choices to two depending on where they live. While the districts are larger than Cumberland Valley, all three are essentially comparable. Because Exit Realty is a national company, the mother can work for Exit in California after she passes an examination for a real estate license. She intends to continue work part-time.3 Shane knows his family in California. He has 1 Morgan is in fourth grade. 2 Their four bedroom home in Boiling Springs, where they have lived for three and a half years, is worth approximately $340,000. 3 She leaves work to be home when the children return from school. She has never worked full-time during her marriage. -3- 97 -2460 CIVIL TERM been there every year since 1996. Last year the parents each gave up two of their weeks during the summer and allowed him to fly to California to spend a month with his grandfather. During Easter this year, he spent a week in California with his mother and Morgan. The mother testified that she considers her family's financial situation stressful, especially given her husband's temporary lay-offs. She feels that there is a brighter future in California, and the move is necessary for the family's economic needs. They will have the advantage of living close to her extended family. She feels that the father can be provided adequate temporary physical custody by having Shane for most of each summer vacation, and spring and Christmas breaks. She is willing to pay whatever the court orders for transportation of Shane for any of the father's periods of temporary physical custody.4 The father believes that it will be difficult for Shane to make friends in California. He believes that the advances Shane has made under the IEP will be jeopardized by such a major move.5 Shane is an integral part of his family and the father believes that a move to California will adversely affect that relationship. He is concerned that as Shane gets older, and more involved in various activities, he may resist coming to 4 Shane was asked how he would feel about moving to California. He stated: "I would like it because I will be able to go be with my mom and I am close with my mom. . .. I really like to hangout with both of them, but my mom, I would rather hangout with more." 5 While the mother has lived in the Cumberland Valley School District, she has moved with Shane nine times. Shane attended three elementary schools. Ninth grade classes -4- 97 -2460 CIVIL TERM Pennsylvania for the better part of each summer. The father states that the mother lives a higher lifestyle than he does, and that it is not fair for her to move Shane to California to serve her husband's needs when the family has done well in Pennsylvania. The father testified that he is more than willing to have primary physical custody of Shane. The mother testified that she will not move to California if she cannot take Shane. 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 Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), the Superior Court noted 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 second Gruber factor, the integrity of the motive of the mother in seeking to take Shane to California, and the motive of the father in seeking to prevent are in the high school facility. -5- 97 -2460 CIVIL TERM it, are adequate. As to the third Gruber factor, the suggestion of the mother for periods of temporary physical custody of the father during summers, spring and Christmas school breaks, is a realistic substitute arrangement. It would be difficult to provide the father additional periods unless he traveled to California, which is unlikely. While such periods would foster an ongoing relationship between Shane and his father, the regular and beneficial contact that now occurs will be seriously disrupted to Shane's detriment. 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 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.) Although the mother would like to live in California near her extended family, economics are driving her request for the relocation of Shane. The desire to move is not a momentary whim. The mother's husband was hired by D.R. Horton at $55,000 a year. He expects to earn some overtime and annual bonuses totaling $10,000 paid quarterly. He has earned $12,779 from June 16 to August 31. He believes that there is an opportunity to advance in the company. He does not believe that he will be subject to temporary lay-offs as he was in Pennsylvania. He testified generally, without -6- 97 -2460 CIVIL TERM hard data, that he expects the cost-of-living in California to be approximately twenty percent more than it is in Cumberland County. He had total income with Gateway Construction of $31 ,288 in 2002; $43,773 in 2003, of which $1,227 was unemployment compensation; and $56,276 in 2004 with no unemployment. Through May 2005, at a rate of $22 per hour plus time and a half for overtime, he had total income of $17,135, $11,022 in wages and $6,113 in unemployment. His employer at Gateway described him as a good, dependable, honest worker, who would be hired back "tomorrow" if he returned from California. Business at Gateway picked up in mid-June and is expected to be strong at least through the end of the year. We are not satisfied from the evidence that moving to California would substantially improve the mother's quality of life and the quality of life for Shane. She and her husband have done well in this area. They live comfortably and can continue to do so. She has steady employment, and has already earned more money this year than she did last year. If necessary, she could increase her hours of employment now that her children are 0lder.6 Her petition to move Shane to California is primarily a response to her husband's action rather than the result of a thoroughly thought out plan designed to significantly improve the quality of life for her family. Moving Shane to California, especially at age 14, would substantially change his relationship with his father at a critical time in his development. Shane will be eighteen and graduate from high school in only four years. Given all of the evidence, we are satisfied that it is not -7- 97 -2460 CIVIL TERM in his best interest for his mother to move him to California. ORDER OF COURT AND NOW, this day of September, 2005, the petition of Nicole L. Seifert to move Shane Ketterer to California, IS DENIED. 6 Most of her sales leads come from manning the duty desk at Exit. -8- 97 -2460 CIVIL TERM Barbara Sumple-Sullivan, Esquire F or the Father Herschel Lock, Esquire F or the Mother :sal By the Court, Edgar B. Bayley, J. -9- BRETT A. KETTERER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NICOLE L. SEIFERT, DEFENDANT 97 -2460 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this day of September, 2005, the petition of Nicole L. Seifert to move Shane Ketterer to California, IS DENIED. By the Court, Edgar B. Bayley, J. Barbara Sumple-Sullivan, Esquire F or the Father Herschel Lock, Esquire F or the Mother :sal