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HomeMy WebLinkAbout2010-246 Civil THOMAS BRANT, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : NICHOLE BRANT, : DEFENDANT : 10-0246 CIVIL TERM MEMORANDUM OPINION AND ORDER OF COURT Masland, J., August 25, 2010:-- On January 7, 2010, Thomas Brant, hereafter father, filed a divorce action against Nichole Brant, hereafter mother, in which he included a count seeking primary physical custody of the parties’ minor child, Jaedon R. Brant, born November 6, 2004. Following a conciliation conference on February 18, 2010, the parties reached a temporary agreement with the understanding that it might be changed at a subsequent conference depending on father’s future work schedule and mother’s living arrangements. Pursuant to such discussions, the court entered an order on February 22, 2010, providing for joint legal custody of Jaedon with, essentially, shared physical custody. Prior to the follow-up conciliation conference, the father filed an emergency petition for special relief on May 27, 2010. On June 2, 2010, pursuant to that petition, the court granted father primary physical custody with mother having supervised visitation until the conciliation conference scheduled on June 10, 2010. The disputes between the parties were not resolved at the conciliation conference and a hearing before the court was scheduled for August 9, 2010. At that hearing, after hearing from the parties, the following individuals testified on behalf of father:Sherry K. Lalli, (father’s girlfriend), Charles D. Felps, 10-0246 CIVIL TERM (a counselor for Jaedon), Patrolman Craig Dunn, (Shippensburg Borough Police Department), and several friends/acquaintances of the parties), Heather Nash, Bobbi Jo Gradjeda, Theresa Armolt, and Amy Shew. Testimony on mother’s behalf was received from her father, Charles Satterly, her mother, Barbara Satterly, and her mother’s fiancé, Keith Dile, Sr. At the conclusion of the hearing, the parties were directed to provide the court with a proposed custody schedule, which provided for the partial custody rights of the other parent. DISCUSSION Perhaps, the central issue in this matter is the issue that gave rise to the emergency relief granted by the court on June 2, 2010. In short, on Saturday, May 15, 2010, father noticed bruises on Jaedon’s arms, who allegedly claimed that “mommy grabbed me and hurt me.” Ultimately, this was reported to Cumberland County Children and Youth Services. At some point after the court nd issued its June 2 order, a representative of the Agency visited with mother and child. No one from the Agency testified at the hearing; however, both parties believed the matter had been closed. Given the passage of over three months since the report, the court will assume that the matter is closed. It is safe to say that but for the allegations in the emergency petition for special relief, the parties would have returned to the second conciliation conference and custody hearing in essentially the same position as the first th conference. And, in fact, at the hearing on August 9, father was still working the 3 p.m. to 11 p.m. shift at Schrieber Foods in Shippensburg and was still expecting to change to the 5 a.m. to 5 p.m. shift sometime before the end of the -2- 10-0246 CIVIL TERM year. Likewise, mother was facing eviction from her apartment with plans to move in with either of her parents. Although father’s shift change is still speculative, Mrs. Satterly, the maternal grandmother, testified at the hearing that mother had decided to move in with the maternal grandfather. No matter their circumstances, at the time of the hearing it was clear that there was no love lost between father and mother. If their ability to communicate was impaired beforehand, it was rendered inoperable by the allegations of child abuse. Those allegations of abuse were coupled with allegations from the father and some of his witnesses that mother had significant problems with her anger. This testimony was corroborated by Officer Dunn, a neutral witness, who described mother as being “uncooperative, hostile and semi-aggressive” after an incident on June 17, 2010, arising from a dispute over Jaedon’s clothing during a custody exchange. It is well established that parents begin custody actions on an equal footing, Sawko v. Sawko, 625 A. 2d 692 (Pa. Super. 1993) and that their burden is to establish where the child’s best interests lie. The court must now weigh the evidence of mother’s anger and determine what effect it has on Jaedon’s best interests. Is her anger due solely to, a “concocted” story of child abuse or is it something that runs deeper? No doubt, any parent believing he or she was falsely accused of such behavior would be angry. But, would that anger be directed at a police officer? Would that anger be apparent to friends and acquaintances? Moreover, would such anger be patently obvious to any observer in the courtroom? Can the court ignore the demeanor of mother and -3- 10-0246 CIVIL TERM determine that her anger represented an isolated incident that would have no bearing on her ability to parent Jaedon? On numerous occasions, the court has advised jurors that when judging credibility and truthfulness, one must look beyond mere words and examine the behavior of the witness. Taking its own advice, the court cannot ignore mother’s behavior on and off the stand. The intensity of her anger was palpable, and it was not merely directed at father or his counsel. With her arms crossed and her jaw tightly set, she stared out the window throughout the hearing. Significantly, this court must determine not only the credibility of the parties, but also their ability and willingness to communicate and work together for Jaedon’s benefit. The court has some apprehension in this respect with father, but mother’s blatant display of animosity is cause for far greater concern. The court does not minimize the fact that divorce and custody proceedings inevitably give rise to emotions and often entail anger. Nevertheless, the anger in this case rises above the norm and should be addressed by the parties through counseling. With respect to the allegations that exacerbated the anger, the court believes father may have been overly cautious, but it does not find that this was a cleverly devised ploy on his part. Although the court does not base its findings on the unfounded allegations, it cannot in good conscience disregard the weight of the evidence regarding mother’s anger which she starkly demonstrated in court. If mother’s anger was indeed not a problem, surely she could have found one person, other than a family member to balance the scales against -4- 10-0246 CIVIL TERM father’s numerous credible witnesses. Instead, her demeanor on and off the stand spoke volumes. Although the court finds that it is in Jaedon’s best interest to reside primarily with father during the school year and attend school in the Southern Huntingdon County School District, the court also believes that mother is a competent parent and that she should have a substantial amount of time with her son. Accordingly, the court enters the following order: ORDER OF COURT AND NOW, this day of August, 2010, (1) Mother and father shall enjoy shared legal custody of the child, Jaedon River Brant, born November 6, 2004. (2) Father shall enjoy primary physical custody of the child. (3) Mother shall enjoy partial physical custody of the child as follows: (a) During the school year on alternating weekends from Friday after school until Sunday at 7:00 p.m. If mother is able to transport the child to school on Monday morning, these weekend periods shall be extended until school begins. If the child is off from school on a Friday or Monday, mother’s weekends shall be extended to include those days as well. (b) During the summer the parties shall exercise shared physical custody on a week on week off basis, beginning and ending on Sundays at 4:00 p.m. (c) Holidays: (i) Christmas: The Christmas holiday shall be divided into two blocks. Block A shall be from Christmas Eve at noon until -5- 10-0246 CIVIL TERM Christmas Day at noon. Block B shall be from Christmas Day at th noon until December 26 at noon. In 2010 and all even numbered years, father shall exercise custody for Block A and mother shall have Block B. In 2011 and all odd numbered years, mother shall have custody for Block A and father shall have custody for Block B. The parties shall divide the remainder of the Christmas break so that each party shall have the opportunity to spend time with the child equally during their time off from work and/or school. (ii) Thanksgiving: The parties shall alternate Thanksgiving each year with mother exercising custody for Thanksgiving in 2010 and all even numbered years, and father exercising custody from Thanksgiving in 2011 and all odd numbered years. The parties shall divide the remainder of the Thanksgiving break so that each party shall have the opportunity to spend time with the child equally. (iii) Easter: The parties shall alternate Easter each year with mother exercising custody for Easter in 2010 and all even numbered years, and father exercising custody for Easter in 2011 and all odd numbered years. (iv) Mother’s Day/Father’s Day: Each parent shall exercise custody of the child for the respective holidays of Mother’s Day and Father’s Day. The time for the holiday shall be from 9:00 a.m. through 7:00 p.m. -6- 10-0246 CIVIL TERM (v) It is anticipated that the child will have a fall break and a spring break from school. Mother shall exercise this time off from school. (vi) All other holidays shall be shared or alternated by agreement of the parties. (d) Transportation shall be shared by the parties as follows: (i) During the school year, mother shall pick the child up from school or at father’s residence at the beginning of her custody and father shall pick the child up from mother at 7:00 p.m. on Sundays. (ii) During the summer, the parties shall meet at a location halfway between their residences, such as Path Valley Restaurant in Spring Run, PA. (e) The non-custodial parent shall be permitted to exercise reasonable, liberal telephone contact with the child, and the custodial parent shall not unreasonably withhold telephone contact with the child. (f) The parties shall keep a journal while exercising custody with the child. The journal shall be exchanged when custody of the child is exchanged to keep each parent apprised of the activities of the child. (g) The child shall maintain his counseling with his current therapist. Both parents shall participate in the counseling within the guidelines and parameters set by the therapist. -7- 10-0246 CIVIL TERM (h) Mother is encouraged to enroll in and successfully complete an anger management course. By the Court, Albert H. Masland, J. Kara W. Haggerty, Esquire For Thomas Brant Harold S. Irwin, III, Esquire For Nichole Brant :saa -8-