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HomeMy WebLinkAbout97-4345 civilMARY E. SMITH, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID M. QUIGLEY, DEFENDANT 97-4345 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLANT PROCEDURE 1925 Bayley, J., December 27, 1999:- Mary E. Smith and David M. Quigley are the parents of Courtney E. Quigley, age 10, born July 2, 1989. A custody hearing was conducted on August 23, 1999, and an order was entered on August 24th. After consideration of the mother's petition for reconsideration, an order was entered on October 4, 1999, which replaced the order of August 24th that was vacated. The mother filed a direct appeal to the Superior Court of Pennsylvania from the order of October 4, 1999. In a concise statement of matters complained of on appeal, she alleges that the court erred in failing to (1) give the child's preference adequate weight, and (2) consider the best interest of the child in reaching its determination. The mother, age 34, and the father, age 39, were married in 1987. The mother moved from the marital residence in January, '1990. The parties were divorced in Ma, '1992. The mother married Michael Smith in July, 1997. This is her third parr/age They have a son, Caleb who is one year old. Smith has two other children. Ti, married Carol Quigley in October, 1995. This is his third marriage. The?""e a 97-4345 CIVIL TERM daughter Kira wi~:~ was born in July, 1999. For the first six months after separation each parent saw Courtney on most days. After an evaluation by a psychologist, the parties entered into an agreement for shared legal custody, and shared physical custody in alternating weeks. An order to that effect was entered in July, 1990, in the Court of Common Pleas of Dauphin County. The father lived in Enola, Cumberland County, which is in the East Pennsboro School District. The mother did not live in that district. When it came time for Courtney to go to school the parties agreed that Courtney would be enrolled in the East Pennsboro School District. The mother instituted a custody action in this court in 1997. On September 11, 1997, by agreement, an order was entered that they have shared legal custody and shared physical custody on a week on, week off basis. The exchange day was Monday. The parents shared the holidays of Christmas, New Years, Easter, Memorial Day, Fourth of July, Labor Day and Thanksgiving. No matter who Courtney is with in any week, the mother takes her to church on Wednesday evening and her father takes her to girl scouts on Thursday evening. The father still lives in Enola in a three-bedroom house. The mother for the last two years has lived sixteen miles away in a three-bedroom townhouse in Grantham, Cumberland County, which is in the Mechanicsburg School District. The mother was working outside of the home until October, 1998, shortly before the birth of Caleb. She is now a homemaker and has no plans to go back to work until at least Caleb goes to -2- 97-4345 CIVIL TERM school. Her husband is a resource manager for G.R. Sponaug~e & Sons. The father has worked twelve and one-half years as a computer operator and electrical designer for Gannett Fleming, Inc. His schedule is 7:00 a.m. to 3:30 p.m. but it is reasonably flexible. His wife works for Highmark from 8:00 a.m. until 4:30 p.m. The parents have been able to communicate and cooperate to make their shared physical custody schedule work without significant difficulty. When Courtney needs medical treatment the parent who she is with takes her for that care. Both parents attend her school activities. During the summer in the weeks when Courtney has been her father and he is not on vacation she has been attending a "Y" program which she enjoys. Courtney has been with her mother during her weeks of alternating custody. Courtney attended the first four years of school in the East Pennsboro School District. Although acknowledging that Courtney is well cared for when she is with her father, the mother filed this petition seeking primary physical custody because Courtney had for about a year asked to live with her. The mother suggested that the father have temporary physical custody every other weekend, every Wednesday overnight, and two three-week periods during the summer except that in the summer she would keep Courtney during the day at any time the father was working. The father has three weeks vacation a year. The father believing that the shared custody has worked well and been in the best interest of Courtney, objected to changing that schedule. At the time of the hearing on August 23, 1999, Courtney was scheduled to commence fifth -3- 97-4345 CIVIL TERM grade in the East Pennsboro School District for the 1999-2000 school year. She did so pursuant to the custody order from which the mother has appealed. That order provides: (1) All prior custody orders including the order of August 24, 1999, and the temporary order of September 20, 1999, are vacated and replaced with this order. (2) The petition of Mary E. Smith for primary physical custody of Courtney E. Quigley, born July 2, 1989, IS DENIED. (3) Mary E. Smith and David M. Quigley shall have shared legal custody of Courtney E. Quigley. (4) Mary E. Smith and David M. Quigley shall have shared physical custody of Courtney E. Quigley on alternate weeks. (5) Courtney shall continue to go to school in the East Pennsboro School District. (6) This schedule shall continue during summer school vacation periods except that during any period that the father is on vacation for up to three weeks, continuous or otherwise, he shall have Courtney. The mother shall have Courtney for three weeks continuous or otherwise at her choice. All of these weeks shall be arranged by the parties at their convenience. (7) At any time during the summer school vacation periods that the father has Courtney and is working, the mother shall care for her during that work period. (8) The exchange of Courtney for the visits between the homes of her mother and father shall occur on Sundays at 8:30 p.m. (9) The holidays shall be alternated and shall begin at 8:00 p.m. the evening before the holiday and end at 8:30 p.m. the evening of the holiday. Father shall have custody on New Years Day, Memorial Day and Labor Day in even numbered years, and Easter, Independence Day and Thanksgiving in the odd numbered years. Father shall have Courtney on Father's Day every year. Mother shall have Courtney on Easter, Independence Day and Thanksgiving in even numbered years, and New Years Day, Memorial Day and Labor Day in the odd numbered years. Mother shall have Courtney on Mother's Day every year. Christmas shall be divided into Part A and Part B with Part A to begin on December 23 after school and end at 11:00 a.m. on December 25. Part B will begin on December 25 at 11:00 a.m. and end on December 27 at 8:30 p.m. Mother shall have Part A in even numbered years and Part B in odd -4- 97-4345 CIVIL TERM numbered years. F:atr';er shall have Part A in odd numbered years and Part B in even nurr:bered years. (10) During the summer when the mother has Courtney while the father is at work, the father shall transport Courtney to the mother's residence in the morning and the mother shall return Courtney to the father's place of employment when his workday is completed at 3:30 p.m. For the weekly changes in custody, the mother shall take Courtney to the father's home after her week with her and the father shall take Courtney to the mother's home after his week with her. The parent with whom Courtney is with before any holiday period with the other parent shall take Courtney to the other parent's home to begin the holiday period. The parent having Courtney for the holiday period shall return Courtney to the other parent's home at the end of that period. Courtney can walk to school from her father's home. Her paternal grandmother comes to her father's home after school and spends a short amount of time with her until the father gets home from work. If Courtney had lived at her mother's home she would have taken a bus to a school approximately three miles away. Courtney is well adjusted academically, socially and behaviorally. She is a B student. She loves both her mother and father and she gets along well with their spouses. She is excited to have a new brother in her mother's home and sister in her father's home. The new custody order provides that Courtney, during the father's weeks in the summer, spend days with her mother when her father is working. This will result in her being with her mother rather than going to the "Y" program during those days. We talked to her in chambers and Courtney's maturity appeared to be at her ten year age level. She stated that she wanted to live with her mother and when asked why she said: A. Well, my mom - I want to be raised by two Christians, and I have - like, I'm growing up and getting changes in my life and stuff, and my body and stuff, and my mommy feels like it would be -5- 97-4345 CIVIL TERM more important to me if she was there to help me with those changes and stuff. And living with my mom I would be ab!e to ~o to church every Sunday, and I really like going to church, i don't get to go to church every Sunday at my dad's. Q. You go every Sunday with your mom? A. Right. Q. What church is that? A. It's Brethren in Christ up in Mechanicsburg. Q. Do you sometimes go to church with your dad? A. My dad doesn't go. My stepmom takes me every now and then but not very often. Q. And what church does she take you to? A. I think it's Zion Lutheran. I'm not quite sure. Q. And you do enjoy going to church with your mom? A. Right. Q. Do you do other things? Do you go to church services or do you do other things with the church? A. They have Sunday school and junior church for just kids. Q. That's what you go to? A. Right. Sometimes I go with my mom to service if I don't want to go to junior church and I want to go to service, but most of the time I go to junior church and Sunday school. (Emphasis added.) A. Well, if I were going to the church that Carol takes me to more often, it would kind of be a hard decision, but I really don't go to that church very often so it's fun to go to except they don't have a junior church or anything for the kids. They just have Sunday school. (Emphasis added.) In McMillen v. McMillen, 529 Pa. 198 (1992), a trial court, in 1982, awarded primary physical custody of a boy, Emmett, to the mother with rights of partial physical custody in the father. Over the next six years the father sought modification of the custody order four times and the mother one time. Each time the trial court significantly expanded the father's periods of partial physical custody. From 1986 on, the child -6- 97-4345 CIVIL TERM repeatedly and steadfastly expressed a preference to live with his father. On July 22, 1998, when the child was eleven years old, the court awarded primary physical custody to the father. The Superior Court of Pennsylvania reversed the trial court but the Supreme Court of Pennsylvania reversed the Superior Court and reinstated the order of the trial court. The Supreme Court set forth: Although the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child's best interest. Commonwealth ex reL Pierce v. Pierce, 493 Pa. 292,426 A.2d 555 (1981). The child's preference must be based on good reasons, and the child's maturity and intelligence must be considered. Id.; Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437,292 A.2d 380 (1972). The weight to be given a child's testimony as to his preference can best be determined by the judge before whom the child appears. See Lombardo v. Lombardo, 515 Pa. 139, 146, 527 A.2d 525,529 (1987), citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635,634 (1977). The Supreme Court concluded: Our review of the record shows that Emmett's preference to live with his father is supported by more than sufficient good reasons. Emmett testified that his stepfather frightens, upsets and threatens him, and his mother does nothing to prevent this mistreatment. He testified that he does not get along with either his mother or his stepfather, and that he gets along well with his stepmother. His testimony also revealed that his mother and stepfather leave him alone after school and that, even though his father and stepmother work, he is never left alone when he is at his father's home for the summer. Emmett also stated that his mother interferes with his sporting and farming activities and refuses even to watch him play ball.~ Thus, we find that Emmett's steadfast wish to live with his father was properly considered, and we find no abuse of discretion in the amount of weight afforded that preference. Nor do we find an abuse of discretion in the trial court's conclusion that Emmett's best interest would be served more appropriately by placing him in his father's custody. The record supports the trial court's finding -7- 97-4345 CIVIL TERM that both households were ,~.qually suitable. This being so, Emmett's expressed preference to !ivd' with his father could not but tip the evidentiary scale in favor of his father. ~ The trial court deemed this interference sufficiently detrimental to the child's social growth and development to warrant an explicit directive in the custody order that the mother make Emmett available for these activities whenever she has physical custody of him. In Myers v. DiDomenico, 657 A.2d 956 (Pa. Super. 1995), the parents of a girl, Amie, born on January 6, 1979 and a boy, Kurt, born on January 19, 1982, separated in 1984 with the children remaining with the mother. When Amie was age 13 and Kurt age 11, the father sought primary physical custody. On September 29, 1993, the court rejected the father's petition and awarded primary physical custody to the mother. The father appealed and the Superior Court of Pennsylvania reversed. The court stated: Amie clearly conveyed the reasons for her feelings at the in-chambers interview before Judge Kopriva. Amie stated: [W]ell I want to live with dad because, I don't know, we've lived with mom, my mom for nine years and I'm going to be going off to college in four and I think that when you have two parents and you love them both and you want to live with them both so uh I think I should get a chance to live with him too.., and it's gonna hurt my relationship with him if we don't, like, cause most kids have a chance to live with both parents [ ], but we never really had that chance. Kurt essentially expressed the same thoughts when questioned by the court as to where he wanted to live. The Superior Court stated: Despite this evidence estab!ished in the record that both parents are equally capable of caring for the children, and that both homes are equally suitable, the trial court chose to ignore the Supreme Court's pronouncement in McMillen that, under equal circumstances, the child's -8- 97-4345 CIVIL TERM preference should tip the scale in favor of the 'preferred' parent. We realize the sensitive nature of the issue at hand and are in no way stati,~-~g that a child's preference is always the correct choice when determini~ custody, nor are we saying that one parent's years of caring, nurturing and overall parenting are to be disregarded. Rather, we are attempting to determine whether the best interests of Amie and Kurt will be best served by allowing them the opportunity to live with their Father during their formative years after having had the opportunity to live with their mother. The Superior Court held: [t]he custody order declining to transfer primary physical custody from Mother to Father is manifestly unreasonable as shown by the evidence of record. Hockenberry v. Thompson, 428 Pa. Super. 403 (1993). For these reasons, and in view of the child's preference we conclude that Amie and Kurt should be able to experience living with Father just as they were able to experience living with Mother. In McMillen, the Supreme Court found that the desire of eleven-year-old Emmett to live with his father was "supported by more than sufficient good reasons" that warranted upholding the order of the trial court. In Myers, when the Superior Court entered its order on April 10, 1995, when Amie was age sixteen and Kurt was age thirteen, it reversed the trial court because it concluded that the children should be able to experience living with their father just as they were able to experience living with their mother. In other words, their desire to live with their father was supported by sufficient good reasons. In contrast, in the case sub judice, Courtney, age ten, has been living with her mother and father under a pure shared custody arrangement since 1990. She has thrived under that arrangement. She gave two reasons for wanting to live with her mother. The first was that "like, I'm growing up and getting changes in my life and stuff, and my body and stuff, and my mommy feels like it would be more important to me if -9- 9 ,'-43,4.5 CIVIL TERM she v./as there to help me with those changes and stuff." That is a reason of the mother for wanting to change the shared custody arrangement, not Courtney's. The second reason was that she wants to be raised by two Christians and she enjoys going to the church where her mother takes her although most of the time that is junior church and Sunday school. Her father's wife, with whom she gets along well, sometimes takes her to another church and Courtney said "lf l were going to the church that Carol takes me to more often, it would be kind of a hard decision." To the extent that Courtney would like to go to church more often on the Sundays that she is in her father's home is a matter that the father and his wife can easily accommodate. Given Courtney's age of ten and her maturity level, we do not deem that her best interest will be served by changing the shared custody arrangement that the parties agreed to and has been in Courtney's best interest since 1990.' Courtney's reasons for wanting the change are not sufficiently good reasons. See Swope v. Swope, 689 A.2d 264 (Pa. Super. 1997). · ~ Date I' Edgar B Bayley, J ~ In In re Wesley J.K., 299 Pa. Super. 504 (1982), the Superior Court of~' Pennsylvania provided guidelines for determining when shared custody is appropriate. Both parents must be fit and capable of making mature child-rearing decisions, and both parents must be willing to provide care and love for their child. Both parents must express a desire for continued active involvement in the child's life. The child must recognize both parents as sources of love and security, and a minimal degree of cooperation between the parents is necessary. All of these guidelines are met in the case sub judice. -10- 97-4345 CIVIL TERM Emily Long Hoffman, Esquire For Plaintiff Max J. Smith, Jr., Esquire For Defendant :saa -11-