HomeMy WebLinkAbout92-634 CivilMARGARET AGRUSO (READER)
Plaintiff
Ve
JOSEPH J. BECHARA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 92-634 CIVIL TERM
IN CUSTODY
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., May 30, 1996.
In the present custody case involving the parties' six-year-
old son the docket in this court now extends to seven pages. Prior
proceedings in New York State contain an order advising that "[t]he
Court has become very familiar with the difficulties of these
parties over the last several months" and noting that "[t]here is
an impossible relationship between the two."~ This particular
order concluded with a dismissal of "all of the petitions herein."2
With what in retrospect seems to have been an unusual display
of alacrity, the New York Court yielded jurisdiction to this court
of the parties' custody litigation in 1992.3 Many petitions,
conferences and hearings have ensued.
During the course of the proceedings, Defendant, now
Appellant, has conceded that he presented false testimony.4 He has
also been adjudicated in contempt.5
On April 11, 1996, this court held a hearing on five petitions
~ Plaintiff's Petition to Determine Jurisdiction, Exhibit C
(filed March 10, 1992).
2 Id.
See Order of Court, March 10, 1992.
N.T. 65, Hearing, April 11, 1996.
Order of Court, September 7, 1995.
NO. 92-634 CIVIL TERM
of the parties. The following order resulted:
AND NOW, this llth day of April, 1996,
upon consideration of the Petition for
Contempt filed on behalf of Plaintiff,
Margaret Agruso Reader, the Petition for
Contempt of Court filed on behalf of
Defendant, Joseph J. Bechara, the Petition for
Special Relief filed on behalf of Defendant,
Joseph J. Bechara, the Supplemental Petition
for Contempt filed on behalf of Defendant,
Joseph J. Bechara, and the Petition for
Reconsideration filed on behalf of Defendant,
Joseph J. Bechara, and following a hearing, it
is ORDERED and DIRECTED as follows:
1. The custody order previously entered
in this case as represented by the Orders of
Court dated September 7, 1995, and November
22, 1995, is amended to provided (sic) as
follows:
a. With respect to the weekly
Wednesday evening telephone calls from
Defendant to the parties' child at the
Plaintiff's residence, the said calls shall be
made between 8:00 p.m. and 8:30 p.m. on
Wednesday evening and no other time; Plaintiff
shall insure that the telephone line is open
during that half hour for receipt of the
calls; Plaintiff shall not listen in to the
conversation between Defendant and the
parties' child; and Plaintiff shall not react
to the child's side of the conversation which
she may overhear.
b. Neither party shall call the
other party's residence collect at any time.
2. Plaintiff shall reimburse the
Defendant in the amount of $192.50 for
airplane fare, representing a portion of the
sum which he expended in reliance upon
misinformation conveyed to him by Plaintiff.
3. Defendant shall receive an additional
two days of partial custody with respect to
the parties' child during the forthcoming
2
NO. 92-634 CIVIL TERM
summer, with one day to be selected by the
Plaintiff and one day to be selected by the
Defendant.
4. In all other respects, the relief
requested by the parties in the various
petitions is denied.6
From this order Defendant Joseph J. Bechara has appealed.
According to Defendant's statement of matters complained of on
appeal, his dissatisfaction with the order arises out of (a) the
court's failure to order installation of a private telephone line
for the parties' six-year-old at his mother's residence and (b) the
court's failure to expand Defendant's contacts with the child
beyond "five (5) opportunities in a normal month."7
This opinion in support of the court's order is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The Plaintiff is Margaret M. Reader (formerly Agruso),
residing at 1804 Creekview Drive, New Cumberland, Cumberland
County, Pennsylvania.8 The Defendant is Joseph J. Bechara,
residing at 916 Center Drive, Franklin Square, New York.9 The
6 Order of Court, April 11, 1996, as amended, Order of Court,
April 16, 1996.
7 A Statement of Matters Complained of on Appeal Pursuant to
Pa. R.A.P. 1925(b), filed May 22, 1996.
8 N.T. 4, Hearing, September 7, 1995.
~ Id. at 57.
3
NO. 92-634 CIVIL TERM
parties live about 200 miles apart.~°
The subject of this custody proceeding is Matthew J. Bechara,
born December 20, 1989. He is the son of the parties, who were
never married to each other; since the dissolution of their
relationship, Plaintiff has married Richard E. Reader~ and
Defendant has acquired a girlfriend.~2
In 1992, following a hearing, this court entered an order
granting primary physical custody of the child to Plaintiff mother,
partial physical custody to Defendant father on alternate weeks
from Thursday until Sunday and for two weeks in August, and
limiting direct contacts between the parties to occasions involving
an emergency.TM
By agreement of the parties, this order was later amended to
provide that Defendant's periods of partial custody would be for
one week in January, February, April, May, September, October,
November and December; two weeks in March, June, July and August;
and over Christmas and New Year's Day on an alternating basis.TM
In 1995, Plaintiff filed a petition to modify the order and
Id.
Id. at 4.
N.T. 49, Hearing, April 11, 1996.
Order of Court, June 3, 1992.
Order of Court, August 14, 1992.
4
NO. 92-634 CIVIL TERM
for contempt.~5 The order was modified by agreement of the parties
to provide generally for primary physical custody of the child by
Plaintiff mother during the school year; and a hearing was
scheduled before the court to resolve partial custody rights of
Defendant during the school year and to establish a summer custody
schedule.~6 Before the scheduled hearing, Defendant filed a motion
for a continuance and a petition for contempt,~7 and Plaintiff filed
(at No. 95-4103 Civil Term) a petition under the Protection from
Abuse Act for a protective order and custody.~8
Defendant's request for a continuance of the custody
proceeding was denied.~9 A hearing on the other matters was held
on September 7, 1995. At the conclusion of the hearing, orders
were issued denying Defendant's petition for contempt, denying
Plaintiff's petition for a protective order and custody under the
Protection from Abuse Act, granting Plaintiff's petition for
~5 Plaintiff's Petition for Modification/Contempt of Custody,
filed May 18, 1995.
Order of Court, July 20, 1995.
~7 Defendant's Motion for Continuance, filed August 25, 1995;
Defendant's Petition for Contempt of Court, filed September 6,
1995.
~8 Plaintiff's Petition for Protection From Abuse Order and
Custody, filed August 1, 1995.
Order of Court, August 29, 1995.
5
NO. 92-634 CIVIL TERM
contempt against Defendant2° and modifying the custody order. The
revised custody order, which was not appealed, provided as follows:
AND NOW, this 7th day of September, 1995,
upon consideration of the Plaintiff's Petition
for Modification of Custody and following a
hearing, it is ordered and directed as
follows:
1. The parties shall share legal custody
of their minor child, Matthew J. Bechara, born
December 20, 1989.
2. During the school year, the child
shall be in the primary physical custody of
the mother, and the father shall have the
following periods of temporary custody:
(a) One weekend per month during
the school year to be exercised by the father
giving the mother forty (40) days advance
notice of the weekend he will have the child;
and
(b) The period from noon on
December 26 through noon December 30, each
year; [and]
(c) The child's entire vacation
from school in the spring of each year (in the
event the child has two separate vacations
from school, the father shall be entitled to
have the child for the longer of the two but
not both).
3. From noon on the second Saturday
following the child's dismissal from school
each summer until noon on the second Friday
before school resumes in fal[1, t]he Child
shall be in the ... physical custody of his
father at his home in New York. Mother shall
have seven (7) consecutive days of custody of
20 The contempt related to phone calls made to Plaintiff in
violation of the order. The court imposed a sanction of $50.
Order of Court, September 7, 1995.
6
NO. 92-634 CIVIL TERM
the child, to be exercised on dates selected
by the mother [as] to which she will give the
father written notice no later than the 15th
day of April each year.
4. The parties will share transportation
for all custodial exchanges equally by
selecting a mid-point between their homes for
purposes of exchange. Unless the parties
agree otherwise, that midpoint will be at the
border between Pennsylvania and New Jersey on
Interstate 78, and will be at 8:00 p.m. on
Friday evening at the beginning of the
father's weekends, and 7:00 p.m. on Sunday at
the end of those weekends.
5. The party having custody or partial
custody shall provide a telephone number where
he or she can be promptly reached directly or
indirectly in the event of a medical
emergency. No communication shall be made by
either party directly or indirectly with the
other, with [a] member of the other's family,
or with the other's employer or co-workers
except in the event of a medical emergency or
through legal counsel.2~
About two months later, Defendant filed a Petition for
Reconsideration. A representative paragraph of the petition read
as follows:
10. The Petitioner requests the court to
order the Respondent to reimburse the
Petitioner for the cost that he incurs each
trip in tolls. It was this Honorable Court's
Order of September 7, 1995 that established
the parties equally sharing the transportation
responsibilities given the great distance that
exists between the parties. However, due to
the existence of several toll bridges and
roads at his end of the transportation
arrangements, the Petitioner regularly must
spend in excess of $12.00 per trip on tolls
Order of Court, September 7, 1995.
NO. 92-634 CIVIL TERM
while the Respondent spends $.50 cents for a
single toll.22
A hearing was scheduled on this petition.23 However, in the
interim both counsel requested a conference in chambers on an
emergency basis, and the following order resulted from the
conference:
AND NOW, this 22nd day of November, 1995,
following a conference in chambers with
counsel for the Plaintiff, Gregory J. Katshir,
Esquire, and counsel for the Defendant, James
J. Kayer, Esquire, and both counsel having
requested that certain issues be'resolved by
the Court on an emergency basis, it is ordered
and directed as follows:
1. Telephone access to the child shall
be permitted by the Plaintiff, Margaret Agruso
Reader, for the Defendant, Joseph Bechara, on
Wednesdays at 8:00 p.m., at which time the
father shall call the child and the child
shall be permitted to answer the phone without
the mother's intervening.
2. Pursuant to an agreement of the
parties through counsel, when a weekend chosen
by the father for his partial custody shall be
a three-day weekend (i.e., having a school
holiday falling on a Friday or Monday), the
father's visitation shall extend to that
vacation day.
3. With respect to the father's
Christmas vacation period of temporary custody
with the child in this year (1995), the
father's weekend custody period for that month
shall occur either at the end of the Christmas
vacation period by the taking of two
1995.
Defendant's Petition for Reconsideration, filed October 31,
Order of Court, November 3, 1995.
8
NO. 92-634 CIVIL TERM
additional days or at another time during the
month in December, at the father's option, but
not the weekend commencing December 22.
4. Because of the impending birth of the
mother's child, the weekend commencing January
12, 1995, shall not be available for the
father's partial custody, and he shall select
another weekend for that period .... 24
This order was not appealed.
Still prior to the hearing scheduled on Defendant's Petition
for Reconsideration, Defendant filed an "Emergency Petition for
Special Relief Pursuant to Pa. R.C.P. 1915.13." This petition
requested that Defendant be afforded custody of the child for the
weekend of December 15, 1995. A conference with counsel in
chambers resulted in an order expanding instead the Defendant's
custodial period during the child's Christmas vacation.25 This
order was not appealed.
Four additional petitions were then filed. They were
scheduled to be heard at the same time as Defendant's Petition for
Reconsideration. These were Defendant's Petition for Contempt of
Court, filed December 29, 1995; Plaintiff's Petition for Contempt,
filed March 22, 1996; Defendant's Petition for Special Relief,
filed April 10, 1996; and Defendant's Supplemental Petition for
Contempt, filed April 10, 1996.
A hearing was held on the five petitions on April 11, 1996.
Order of Court, November 22, 1995.
Order of Court, December 14, 1995.
9
NO. 92-634 CIVIL TERM
With respect to telephone communications between Defendant father
and the parties' child, the evidence tended to show that Defendant
did not always call at the proper time and that Plaintiff did not
always honor the privacy of the conversations.26 Defendant
suggested that a private telephone line be installed for the child
at Plaintiff's residence:
Q What solution would you request the
judge make with regard to telephone contact?
A Since the parents seem to have
difficulty, the son shouldn't pay. My son
should not pay for adult problems. My son
should have liberal communication with me, not
at the expense of interfering with other
families, but he should be able to speak to
me. Two times a week is not asking a lot,
Margaret, it really isn't. And I don't see if
that can't be achieved, then a separate line
for him, I'll figure out how we figure out the
bill, and you won't be bothered if it's such a
bother for me to speak to Matthew.
THE PLAINTIFF: You abuse that right.
THE COURT: Wait. I don't want the
parties talking to each other during the
testimony .... 27
With respect to the partial custody periods and other contacts
provided for Defendant under the existing, unappealed orders of
court, the evidence at the hearing did not show an intervening
change of circumstances. Nor did the evidence show that an
expansion of Defendant's rights and a corresponding reduction in
See, e.g., N.T. 17, 48-49, Hearing, April 11, 1996.
Id. at 52.
10
NO. 92-634 CIVIL TERM
Plaintiff's would in any way advance the best interests of the
child. The evidence at the hearing focused, instead, almost
entirely upon the grievances and animosities of the parties against
and toward each other.
DISCUSSION
"[T]he paramount concern in child custody proceedings is the
best interest of the child." Moore v. Moore, 535 Pa. 18, 30, 634
A.2d 163, 169 (1993).
"It is axiomatic that child custody orders are temporary in
nature and subject to change if new circumstances affect the
welfare of the child." Artzt v. Artzt, 383 Pa. Super. 23, 28, 556
A.2d 409, 412 (1989), appeal denied, 528 Pa. 275, 597 A.2d 1115
(1991). In addition, "custody can be changed without proof of
substantial change in circumstances when it is shown that the
change is in the best interest of the child." Moore v. Moore, 535
Pa. 18, 30, 634 A.2d 163, 169 (1993).
In the present case, with respect to Defendant's proposal that
the parties' six-year-old be provided with a private telephone,
subject to a determination by Defendant as to proper assessment of
financial responsibility for the utility, the court believed that
an instrument in Plaintiff's home in which Defendant had an
interest would engender more rather than less acrimony between the
parties and would do little to deter intermeddling on the part of
Plaintiff. For this reason, the court did not feel that the
11
NO. 92-634 CIVIL TERM
proposal would further the best interests of the child.
With respect to an expansion of Defendant's custodial and
telephone contact rights, it is noted (a) that the order which
established Defendant's basic periods of partial custody was not
appealed from and that no change in circumstances was shown to have
occurred in the two months between the issuance of the order and
Defendant's request for a change; (b) that Defendant's weekly
telephone access to the child was pursuant to an order which was
not appealed from, which postdated Defendant's petition for
reconsideration, and which was not shown to have been subject to
changed circumstances; (c) that Defendant's present periods of
partial custody and other contacts with the child are substantial
- consisting of one weekend per month, a portion of the child's
Christmas vacation, all of the child's spring vacation, most of the
child's summer vacation, and a phone call each week; and (d) that
Defendant has resorted to the use of false testimony and has been
adjudicated in contempt in the course of these proceedings.
Given these factors, the Court did not perceive that a change
in circumstances had been shown which would, without more, require
a reevaluation of the custody arrangement in question. Nor did it
believe that Defendant had shown that an expansion of his rights
would be of benefit to the child, without regard to whether a
change of circumstances had occurred. Based upon the foregoing,
12
NO. 92-634 CIVIL TERM
the court did not accept Defendant's positions on the two points
being pursued on appeal.
Gregory J. Katshir, Esq.
900 Market Street
Lemoyne, PA 17043
Attorney for Plaintiff
James J. Kayer, Esq.
4 Liberty Avenue
Carlisle, PA 17013
Attorney for Defendant
: rc
13