HomeMy WebLinkAbout2007-1573
BRIAN IRVINE, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. :
MAUREEN IRVINE, : NO. 2007 – 1573 CIVIL TERM
Defendant :
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., November , 2010
The defendant (Mother) has filed an appeal from our order of July 23, 2010 which
amended our previous custody order. On appeal she contends that we denied her due process
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of law, abused our discretion and committed numerous errors. Specifically she alleges that we
denied her due process and/or abused our discretion 1) by not giving her expert witness
sufficient time to prepare a written report; and 2) by refusing to allow her additional witness to
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testify. She also contends that we abused our discretion and/or erred by 1) failing to receive
testimony from the child; 2) failing “to properly establish a change in circumstance to warrant
modification”; 3) not giving adequate weight to the status quo; 4) not giving mother additional
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partial custody; and 5) adopting the status quo on the issue of school selection. We will
address those issues in the opinion that follows.
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See Statement of Matters Complained of on Appeal.
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See Statement of Matters Complained of on Appeal, paragraphs 1 – 2.
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See Statement of Matters Complained of on Appeal, paragraphs 3 – 7.
Procedural and Factual Background.
The parties were married at the time their only child Stephanie was born on January 7,
2002. They separated in the summer of 2006 and divorced in March 2007. The parties were
living in Cumberland County at the time of separation. After they separated Mother and the
child lived in various locations until she settled into an apartment in New Cumberland in late
2006 or early 2007.
Father filed a custody complaint in Lehigh County in August of 2006. Mother filed
preliminary objections contending that the action should proceed in Cumberland County. After
hearing evidence the Honorable J. Brian Johnson of the Lehigh County Court of Common Pleas
agreed. On February 20, 2007 he ordered that the case be transferred to Cumberland County.
On May 4, 2007 a conciliation conference was held in Cumberland County. The parties
agreed to the entry of an order that provided for shared legal and physical custody, with each
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parent spending an equal amount of time with the child.
When the child began school the following September the shared physical custody
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became impractical. The parties agreed to the entry of an order which provided for Mother to
have primary physical custody “as long as Father remains residing outside of New Cumberland,
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While the parties agreed upon the arrangement in May, for some unexplained reason the court order confirming
it was not entered until September 11, 2007.
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Father was still living in Lehigh County at the time.
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Cumberland County Pennsylvania”. It further provided that if Father moved to New
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Cumberland the parties would share physical custody on “an alternating weekly basis.”
Within the next few months Father purchased a home in New Cumberland so that he
could share physical custody of his daughter. He has lived there ever since. It is a pleasant
home in a good neighborhood. The child has her own bedroom.
Sometime in 2007 Mother became involved in a relationship with her current paramour
Donald Rostad. In January of 2009 she moved from her apartment in New Cumberland to a
townhouse owned by Mr. Rostad in York, Pennsylvania. She and Stephanie share the home
with Mr. Rostad and his two daughters, Elizabeth 14 and Alexis 11. Stephanie shares a
bedroom with Alexis. She gets along well with Mr. Rostad and his children. They live in a very
nice home in a good neighborhood.
In January of 2009 Mother notified Father that she had “officially” moved in with her
boyfriend in York. She advised Father that she wanted to maintain the shared custody
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arrangement. She also wanted Stephanie to remain in the same school district. However,
since Mother was no longer living in the district Father would have to use his address as the
child’s residence. Because the district had changed its map the previous year Father’s address
required that the child be enrolled at Highland Elementary rather than Hillside Elementary.
The parties continued with the alternating physical custody on a weekly basis. In July of
2009 Father filed a modification petition seeking primary physical custody of the child. The
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Order of October 12, 2007.
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Order of October 12, 2007.
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The child was enrolled in the West Shore School District when she entered kindergarten in September of 2007.
She attended the Hillside Elementary School during kindergarten and first grade.
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parties attended a conciliation conference on August 14, 2009. While they were unable to
reach an agreement on the ultimate issue, they did agree that a custody evaluation would be
beneficial and that Pauline Wallin, Ph.D should do it. They also agreed to continue the shared
custody arrangement pending the evaluation and hearing. We scheduled a custody trial for
November 9, 2009.
On September 30, 2009 Father filed a request to continue the trial because it was
apparent that the evaluation could not be completed on time. We granted a continuance to
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December 11, 2009. On December 9, 2009 Mother filed a request for an additional
continuance to give Dr. Wallin time to complete the evaluation. We continued the trial to
March 3, 2010. The matter was continued yet again to May 20, 2010 when it became apparent
that Dr. Wallin’s evaluation would not be completed in time for the March 3, 2010 hearing.
Dr. Wallin completed her written report on April 9, 2010. On May 17, 2010 Mother filed
a request to continue the May 20, 2010 trial so that she could have Dr. Wallin’s work reviewed
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by another psychologist. She requested a continuance of “approximately thirty (30) days.”
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Father’s counsel objected to the 11 hour request because he had already paid Dr. Wallin a
non-refundable $750 fee to appear at the May 20, 2010 trial. Despite Father’s objection we
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granted a continuance of approximately sixty (60) days to July 23, 2010. That hearing was
held as scheduled.
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Father’s counsel also had a scheduling conflict with the November 9, 2009 date.
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Motion for Continuance, May 17, 2010.
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We also ordered Mother to reimburse Father for the non-refundable fee paid to Dr. Wallin.
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The parties had shared custody of the child on an alternating week basis from the time
father moved to New Cumberland until our order of July 23, 2010. Because of their close
proximity things went relatively well despite the parties’ inability to cooperate. However when
Mother moved to York, almost thirty miles away, their conflict increased to the detriment of
the child. During Mother’s custodial week Stephanie was required to spend 1 ½ hours in the
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car each day going to and from school. In addition because of Mother’s unwillingness to allow
Father to pick the child up from school to take her to Girl Scout meetings, she had to spend an
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additional 1 ½ hours in the car on each Monday of Mother’s week.
Mother’s move also required the child to change elementary schools. Stephanie had a
difficult time adjusting to the new school. However, she eventually settled in and did well
there. At the time of the hearing Mother articulated her desire to maintain the same shared
custody arrangement. However, she wanted the child to attend school in York.
Father’s motivation in filing the petition for modification was to eliminate the time the
child spends in the car travelling to and from school each week. He also wanted the child to
have a permanent address during the school year so that she could maintain regular contact
with her friends from school and participate in extra ciricular activities.
We gave credence to the evaluator’s conclusion that both parents are capable of
providing the child with a safe and comfortable home. While she identified some limitations
with each, we were satisfied that they were both good parents.
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We found Mother’s testimony that it takes only 30 minutes each way to be less than credible. She must drive
the I-83 corridor during near peak traffic times each way. It is inconceivable that she could make the 30 mile trip in
30 minutes, even in ideal traffic conditions.
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Father or his parents are required to travel to York to pick the child up, take her to the Girl Scout meeting in New
Cumberland at 6:30 and return her to York after the meeting.
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DISCUSSION
Denial of Due Process/Abuse of Discretion.
Mother claims that we denied her due process and/or abused our discretion by 1) not
giving her expert sufficient time to write a report and 2) refusing to allow her additional witness
to testify. We did neither.
At the eleventh hour Mother requested a continuance of the May 20, 2010 trial so that
she could have Dr. Wallin's notes and recommendations reviewed by another psychologist. In
her petition she stated that the review would not “significantly delay these proceedings as she
has already contacted a psychologist who is prepared to begin said review immediately upon
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receipt of . . . Dr. Wallin’s records.” She requested a 30 day continuance. We granted her 60
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days. No other requests were filed.
We did not prevent Mother from calling any witnesses. After we heard from Dr. Wallin
and the parties we asked counsel if they had any other witnesses. We had the following
exchange with Mother’s counsel:
MS. ERB: Mr. Rostad is here to testify since he’s in the household if you would like
to hear from him.
THE COURT: Okay. What’s he going to say? He can’t stand the sight of Stephanie?
MS. ERB: No. He’s going to testify how good of a relationship he and his daughters
have with Stephanie.
THE COURT: I thought I heard that.
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Motion for continuance filed May 17, 2010, p. 10.
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We cannot recall if counsel made an oral request in chambers immediately prior to the commencement of trial.
If she did, we would have denied it based upon the lateness of the request. In any event she did not renew any
such request on the record.
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(emphasis added). Counsel did not press the issue.
Abuse of Discretion/Error.
Mother alleges that we erred and/or abused our discretion in failing to receive
testimony from the child. As a general practice we are reluctant to hear from a child as young
as eight years old. We are loathe to put the child in the middle of the parents’ conflict. We
make exceptions to the rule on a case by case basis. For example if the child feels strongly
about speaking to us or if either party insists that we hear from the child, we will take
testimony in chambers. In the instant case neither party requested that we take the child’s
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testimony.
She also contends that we committed reversible error by 1) modifying the existing order
without a change of circumstances sufficient to justify the modification; 2) not giving adequate
weight to the status quo; 3) not giving Mother additional partial custody; and 4) failing to allow
the child to switch school districts. We can state unequivocally that we were guided by the
child’s best interests in connection with our rulings.
Joint physical custody seemed to work, despite the parents’ inability to get along, while
they lived in close proximity. Mother changed all of that when she elected to move in with her
boyfriend thirty miles away. Stephanie was required to spend an inordinate amount of time in
the car to attend school and her extracurricular activities. The increased distance also
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Transcript of Proceedings, July 23, 2010, p. 99.
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We note that we specifically found that the child has a good relationship with Mr. Rostad and his daughters.
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Again as part of our pretrial discussion in chambers we may have advised counsel of our feelings and exceptions
on the matter of young children testifying, although we really do not recall. In any event neither party requested
on the record that we hear from the child.
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increased the scheduling conflicts between the parties. For instance it was no longer possible
for Father to get home from work at 6:00, pick Stephanie up at Mother’s house and get her to
Girl Scouts by 6:30. We agreed with Dr. Wallin that the parental conflict was “taking its toll” on
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Stephanie. We also agreed with her observation that “(d)uring the school year it makes sense
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for her to attend a school and to have minimal travel like most other kids.”
Having determined that joint physical custody was no longer practical during the school
year because of the distance, we then had to determine which parent should have primary
physical custody. The primary reason for our decision was the reluctance to have the child
change schools yet again. She had a difficult time adjusting to the change in second grade. We
wanted to spare her the anxiety and stress that would be involved in attending third grade in a
new school. With the above goals in mind we structured a custody order that we felt would
maximize the time Stephanie could spend with the non-custodial parent while minimizing her
time spent traveling and the potential for conflict between the parties.
___________________ ________________
DATE Edward E. Guido, J.
MARY J.B. EIDELMAN, ESQUIRE
MELANIE ERB, ESQUIRE
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Plaintiff’s Exhibit 1, p. 15.
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Transcript of Proceedings, July 23, 2010, p. 99.
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MARY J.B. EIDELMAN, ESQUIRE
MELANIE ERB, ESQUIRE
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