HomeMy WebLinkAbout01-1873 CivilROBERT J. MARSH,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
KATHLEEN S. MARSH,
Defendant
NO. 01-1873 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 15, 2001.
In this custody case, Plaintiff father has appealed to the Pennsylvania
Superior Court from an order which awarded primary physical custody of the
parties' three children to Defendant mother. The bases for Plaintiff's appeal have
been expressed in Defendant's statement of matters complained of on appeal as
follows:
A. The Trial Court abused its discretion when it reduced
Plaintiff/Father's visitation with the children without any
justification.
B. The Trial Court abused its discretion when it reduced
Plaintiff/Father's visitation with the children and rejected,
without reason, the recommendation of the psychologist who
was employed by the parties to help them resolve this case in
the children's best interest.
C. The Trial Court abused its discretion when it failed to
consider the express wishes of the children, who are of an
appropriate age to voice their opinions in a child custody
matter, and who did so through the psychologist.
D. The holiday schedule set forth by Order of May 10,
2001 was satisfactory to both parties and was changed
without basis to eliminate all but two (2) holidays and to
change even the times the parties had agreed on.
This opinion in support of the custody order appealed from is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
Plaintiff's Concise Statement of Matters Complained of, filed October 9, 2001.
STATEMENT OF FACTS
Plaintiff is Robert J. Marsh, 40; he resides at 360 Old State Road, Gardners,
Cumberland County, Pennsylvania.2
resides at 11 South Ridge Road,
Pennsylvania.3
Defendant is Kathleen S. Marsh, 40; she
Boiling Springs, Cumberland County,
The parties were married in October of 1986.4 Three children were born of
their marriage: twelve-year-old Danielle Nicole Marsh (d.o.b. December 20,
1988), her twin sister, Alicia Christine Marsh (d.o.b. December 20, 1988), and
their nine-year-old younger brother, Aaron Robert Marsh (d.o.b. October 21,
1991).5 The parties separated in April of 1997, and were divorced in October of
1998.6
Plaintiff father is a restaurateur who owns and operates a pizza shop on
Spring Road in Carlisle, Cumberland County, Pennsylvania.7 Defendant mother is
a registered nurse, who supervises a wing at the county nursing home in Carlisle,
Cumberland County, Pennsylvania.8 The parties' residences are about ten miles
apart.9
When the parties separated in 1997, Defendant mother remained with the
children in the family home and maintained her role as their primary caregiver, l0
: N.T. 4, Hearing, August 15 and August 20, 2001 (hereinafter N.T.
SN.T. 4.
4N.T. 4.
5 N.T. 4-5.
6N.T. 4.
7N.T. 4, 7.
8N.T. 4,41.
9N.T. 18.
~° N.T. 31.
2
Defendant father sought (and received) only overnight custodial periods, three
times per week. ~
Under this arrangement, the children have prospered in school, both
academically and socially.~2 Defendant mother has established a routine whereby
she oversees completion of their homework,~3 facilitates their participation in
extracurricular activities such as sports,TM and promotes their regular attendance at
church.~5 Her normal work schedule is from 7:00 a.m. until 3:00 p.m.,~6 which
enables her to get the twins on the school bus (a neighbor facilitates Aaron's
transportation to school)~7 and to be available for the children at the end of the
school day.la Her employment situation is flexible enough to accommodate
changes in her schedule when necessary for the children. 19
Defendant mother has also been accommodating and cooperative with
respect to permitting the father and his family and friends additional time with the
children2° and providing the father with information about the children.~ The
strong impression of the court with respect to the mother is that she is devoted to
the children, displays a high degree of common sense and understanding in
parenting, has not allowed hostility toward her on the part of Plaintiff to affect the
children, and has the best interests of the children at heart.
~ N.T. 31, 41. These periods were on Sundays, Wednesdays and Fridays, from 6:00 p.m. until
the following mornings at 9:00 a.m.N.T. 6.
~2 N.T. 43.
~3 N.T. 44, 59
~4 N.T. 43.
~5 N.T. 43-44.
16 N.T. 39, 41.
~7 N.T. 41.
~8 N.T. 42.
19 N.T. 42.
20 N.T. 34.
2~ N.T. 40.
3
Plaintiff father is also a loving parent. He still harbors, however, a high
degree of resentment toward Defendant with respect to the dissolution of their
marriage.22 This resentment finds expression in his general refusal to
communicate with Defendant by other than sealed writings which he hands to
her,23 his zealous pursuit of hours with the children at times when their own
interests might be better served by a more flexible approach,~4 and his refusal to
accommodate Defendant's reasonable needs.~5
Thus, Plaintiff has rejected Defendant's attempts to relate the history of
transient illnesses which the children may have, advising her, "I don't want to
know. Just tell me what to do.''26 Plaintiff has told Defendant, "I don't want
quality time, I want my half the time.''~7 He refused to alter Defendant's pick-up
time for the children to facilitate her attendance at the hearing in this case.28
An example of the difficulties which the parties experience in working
together for the children's benefit was provided in the following testimony of
Defendant:
Q And did you request, I guess, of the father on July
4th[, 2001,] to exchange some time, and it was rather
acrimonious?
A What happened was, July 4th, I was supposed to
have -- according to the conciliator's schedule, I was supposed
to have them in the afternoon of July 4th, which was a
Wednesday, and Bob would have had them in the morning.
The week before, I saw that it was my week to have them
Monday and Tuesday. I just really felt that it was not good for
:: N.T. 79. The court did not find persuasive Plaintiff's testimony that his initial anger at the
parties' separation has been replaced by pity for Defendant. N.T. 20.
:3 N.T. 20-21, 48.
:4 N.T. 46-48.
:5 N.T. 26.
26 N.T. 48.
:7 N.T. 45.
:8 N.T. 26.
4
the kids, to drive them Tuesday night to Bob to have them for
the morning, give them back to me Wednesday afternoon, give
them back to Bob Thursday morning, and then him to have--
yeah.
There would have been like three exchanges there in the
matter of the three days. So ! called Bob the week before, and
! said, Bob, if you don't have anything planned, would it be
okay with you just to switch that morning and afternoon so that
! would just keep them from Monday, Tuesday, into
Wednesday afternoon, and then he could get them Thursday
afternoon to keep them into Friday, because it would still be a
half a day and an overnight.
Then Monday night, he called me. ! was out in the garden.
And he called me, and he said, asked me if ! had given any
thought to how many hours that was. ! couldn't think. ! said,
no, ! haven't. ! knew it was a night and a half a day. ! just put
that out to you. And he got very angry with me and nasty
screwing him out of the hours.
He wanted every hour that he was entitled to, and it had to
be done to the hour. So ! offered--I said, ! can't think. ! just
couldn't think when he said that about down to the very hours.
So ! called him back. ! said, ! need to figure that out. And !
called him back and said that he would have been short one
hour, so if he wanted to pick them up at 1:00 instead of 2, that
would be fine with me.
So then he left me a message, 1:00 pick-up is fine. And so
that's what we did then to keep the children from going back
and forth three times.29
Although Plaintiff is focused upon the relative number of hours of custody
which he feels he is entitled to, the children frequently are with his relatives rather
than him during the periods of custody which he has.3° In one period, for instance,
of sixteen occasions when the children were transferred to his custody he was
himself present at only four of the exchanges.3~ The children frequently sleep at a
29 N.T. 47-48.
s0 N.T. 35-36.
si N.T. 35-36.
5
relative's home rather than his.32 This situation has caused the mother to observe,
correctly in the court's view, that, although "[h]e needs more time... I don't think
that he really ever utilized the time that he did have with them.''33
When the children expressed a desire for an expansion of Plaintiff father's
custody beyond periods when they were asleep most of the time,34 he filed a
complaint for shared custody on March 30, 2001. A custody conciliation
conference held on May 1, 2001, did not resolve the issue of custody.35 However,
a temporary order recommended by the conciliator, which was issued by the court
on May 10, 2001, reflected an agreement of the parties as to several custodial
matters and scheduled a full custody hearing before the court.36
The terms of the temporary order of May 10, 2001, included provisions for
(a) shared legal custody, (b) periods of physical custody during the summer in
alternating blocks of two weeks, and (c) a holiday schedule.37 The basic issue of
physical custody throughout the school year was not addressed by the temporary
order. The order noted that "[i]t is acknowledged between the parties that they are
experiencing serious divisions in their relationship which are, in turn, having an
adverse impact on their ability to co-parent the subject minor Children.''3a Shortly
after issuance of the temporary order, the parties adopted a variation of the shared
custody arrangement for the summer, whereby on an alternating basis each had
custody of the children for four days of one week and three days of the following
week.39
32 N.T. 66-68.
33 N.T. 36.
34 N.T. 10.
35 Custody Conciliation Summary Report, dated May 4, 2001.
36 Order of Court, May 10, 2001. The hearing before the court was held on August 15, 2001, and
August 20, 2001.
37 Order of Court, May 10, 2001.
38 Order of Court, May 10, 2001.
39 N.T. 12, 74; Plaintiff's Exhibit 1, at 1 (Report of Elaine S. Rissinger, Ed.D.).
6
A therapist whom the parties engaged for the purpose of promoting their
co-parenting skills4° agreed to assume the role of advocate for the children's
wishes and did so at the hearing before the court.4~ (The parties did not wish to
subject the children to the stress of direct participation in the hearing.42) In this
role, the therapist recommended that the court adopt, on a trial basis, the children's
preference that the summer shared custody arrangement be continued into the
43
school year.
The children's tendency to maintain a status quo, however, had originally
manifested itself in a reluctance to enter into an arrangement whereby the father
had equal time with them.44 In addition, the therapist noted in her report that,
although "[t]he children are comfortable with both their mother and
father[,].., they report that they miss their mother when they are at their father's
home.''45
The therapist also noted:
[T]he children continue to express confusion about the
schedule and the frequent exchanges and have some difficulty
keeping their "stuff' with them as they go from house to house.
Because of their father's work schedule, they have spent much
time this summer at relatives' homes which they report that
they enjoy, but it lends itself to the scattering of their "stuff' in
many locations.46
While recommending the continuation of the 4/3 3/4 arrangement because
the children had advised her that this was their wish, the therapist reported that the
children needed structure during the school year, that Defendant mother had done
4o See Order of Court, May 10, 2001.
4~ N.T. 76, 81.
42 N.T. 69; Order of Court, August 15, 2001.
43 N.T. 76. The therapist recommended that the trial period last until mid-October,
76.
44 N.T. 74-75.
45 Plaintiff's Exhibit 1, at 1 (Report of Elaine S. Rissinger, Ed.D.).
46 Plaintiff's Exhibit 1, at 2 (Report of Elaine S. Rissinger, Ed.D.).
2001. N.T.
7
"an excellent job providing a structure for them," and that one of her (the
therapist' s) concerns was that the said arrangement would interrupt this structure.47
She felt that it "remain[ed] to be seen" whether Plaintiff father was capable of
providing the same structure.48 In this regard, she emphasized:
[A]t this point, because the children wanted to remain this way,
I agreed to make this recommendation. I said to the children at
the very beginning that I was going to be their advocate with
them. We would see how it worked for them. They say they
want this to be--to remain the same. I've talked to them about
49
my concerns ....
Furthermore, the therapist felt that Plaintiff father remained angry,5° and
that an "issue from Mr. Marsh's side [was that] he wanted to make sure everything
was equal.''5~ She stated that she was not sure whether Plaintiff was capable of
compromising if an arrangement he wanted was not in the children's best
interest)2 She observed that Plaintiff was "less willing to compromise on pick-up
times and drop-ofttimes.''53 In this regard, she testified:
[H]e seemed less willing to compromise. That was the basic
thing. It seemed more important that the time be equal rather
than the children's needs be addressed with switching back and
forth.54
The therapist also noted her concern "that when [the children] went to their
father's house, they really weren't sure where they were going because there was a
lot of switching around and, of course, that was because there was--it was in the
47 N.T. 76.
48 N.T. 76.
49 N.T. 76-77.
5o N.T. 79.
5~ N.T. 79.
s: N.T. 80.
s~ N.T. 82.
54 N.T. 83.
summer, and there were a lot of activities, and we didn't need the consistency then
that we do now [in the school year] .,,55
Ultimately, the court entered the following order, granting Defendant
mother primary physical custody during the school year and awarding Plaintiff
father liberal periods of temporary or partial custody, based upon its evaluation of
the evidence in the case as it related to the best interests of the children:
AND NOW, this 21st day of August, 2001, upon
consideration of Plaintiff's complaint for custody with respect
to the parties' children, Danielle Nicole Marsh (d.o.b.
December 20, 1988), Alicia Christine Marsh (d.o.b. December
20, 1988), and Aaron Robert Marsh (d.o.b. October 21, 1991),
and following a hearing held on August 15, 2001, and August
20, 2001, it is ordered and directed as follows:
1. Legal custody of the children shall be
shared by the parties.
2. Primary physical custody of the children
shall be in Defendant (the mother).
3. Temporary or partial physical custody of
the children shall be in Plaintiff (the father) at the
following times:
a. During the school year,
(1) On alternating weekends
from Friday at 7:00 p.m. until
commencement of school on the
following Monday morning;
provided, that where such
Monday is a federal holiday, the
period of temporary or partial
physical custody shall extend to
Monday evening at 7:00 p.m.
(2) From Wednesday at 7:00
p.m. until Thursday at 7:00 p.m.,
on alternating weeks.
b. During the summer, for alternating
two-week periods, commencing with the
55 N.T. 80-81.
9
end of school and concluding with the
resumption of school.
4. Notwithstanding the foregoing, custody of the children
shall be in Defendant (the mother) on Thanksgiving Day until
3:00 p.m. and in Plaintiff (the father) from 3:00 on
Thanksgiving Day until 7:00 p.m. on the following Sunday;
and custody of the children shall be in Defendant (the mother)
on Christmas Day until 3:00 p.m. and in Plaintiff (the father)
from 3:00 p.m. on Christmas Day until 7:00 p.m. on December
30.
5. Nothing herein is intended to prohibit the parties from
deviating from the terms of this [arrangement] by mutual
consent.
6. All prior custody orders are vacated.
Plaintiff father filed an appeal from this order on September 18, 2001.
DISCUSSION
The "paramount concern" and "polestar" of any custody analysis is "the
best interests of the child." Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d
692, 693 (1993). Although joint or shared physical custody is a permissible form
of custody for a court to order, "there is no presumption favoring shared custody."
Schwarcz v. Schwarcz, 378 Pa. Super. 170, 183 n. 16, 548 A.2d 556, 563 n. 16
(1988) (quotingln re Wesley J.K., 299 Pa. Super. 504, 514, 445 A.2d 1243, 1248
(1982).
Instead, trial courts are required to consider all factors which
legitimately impact upon the child's physical, intellectual,
moral and spiritual well-being on a case by case basis in
deciding how to allocate post-divorce parental authority via
legal and physical custody.
Zummo v. Zummo, 394 Pa. Super. 30, 45, 574 A.2d 1130, 1137 (1990); see Lee v.
Fontine, 406 Pa. Super. 487, 488, 594 A.2d 724, 725 (1991).
"The presumption-free law permits the [trial] court to engage in a full, fair
and comprehensive examination of the best interests of the child. It does not place
an unreasonable burden on a long-time custodial parent to defend the status quo."
Karis v. Karis, 353 Pa. Super. 561, 568, 510 A.2d 804, 808 (1986) (quotingln re
10
Wesley J.K., 299 Pa. Super. at 514-15, 445 A.2d at 1248). In addition, while they
are significant factors to be considered, neither the preference of the child nor the
opinion of an expert is binding upon the court in its analysis of the case. See
Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. 2000); Murphey v. Hatala, 350
Pa. Super. 433,443,504 A.2d 917, 922 (1986).
Among numerous considerations in a case of the present type is whether
one parent has a history as the primary caregiver and whether the results of that
history have been positive. Michael T.L.v. Marilyn J.L., 363 Pa. Super. 42, 54-55,
525 A.2d 414, 420-21 (1987). As the Superior Court has noted, "[w]hen a child
receives love, guidance, companionship, and direction from a parent on a
consistent basis, a firm foundation is being laid for the child's future healthy
development." Michael T.L., 363 Pa. Super. at 55, 525 A.2d at 421 (quoting
Gonzalez v. Gonzalez, 337 Pa. Super. 1, 6-7, 486 A.2d 449, 452 (1984)). "[T]he
trial court must give positive weight to the parent who has been the primary
caregiver." Gonzalez, 337 Pa. Super. at 8, 486 A.2d at 453. Other factors include
the fitness of the parents, the desire on the part of the parents for a continuing
active involvement in their child's life, the existence of a relationship between the
child and the parents, and the degree of cooperation between the parents.56
In the present case, factors which militated in favor of an award of primary
physical custody to Defendant mother during the school year, with liberal periods
of temporary or partial physical custody in Plaintiff father, included (a) the
mother's long history as the children's primary caregiver with highly successful
results, both academic and social, (b) her relative superiority as a parent in terms
of understanding and placing the children's interests ahead of her own, (c) her
demonstrated capacity and willingness to provide the structured environment
which the children need during the school year, (d) her relative strength in the area
of cooperation and accommodation with respect to the other parent, (e) the father's
56 See Schwarcz, 370 Pa. Super. at 183-90, 548 A.2d at 563-66.
11
inability or unwillingness to communicate in a meaningful way with the mother
due to resentment over the dissolution of their marriage, (f) the extent to which the
father's practice has been to be out of the children's presence during his periods of
custody, and (g) the father's tendency to focus upon his own interests in terms of
custodial time rather than the children' s.
In giving weight to these factors, the court in no way doubted the father's
fitness as a parent or his genuine love for his children. Nor did the court discount
the children's preference, as expressed by their therapist, that the summer shared
custodial arrangement be extended into the school year. However, a natural
tendency might exist in these circumstances in children who love both parents not
to disappoint one by requesting a return to a prior arrangement; in any event, the
court shared the concerns expressed by the therapist about the abandonment of the
mother's home as a primary residence during the school year. The court's
recognition of the father's fitness as a parent, his love for his children, and the
children's preference was reflected in the greatly expanded periods of quality time
with the children awarded to him. 57
The position of the therapist in this case was to a large extent a function of
her agreement that she would advocate in favor of the children's wishes and was,
in that sense, more in the nature of an expression of the children's preference than
a typical independent custodial recommendation. Her testimony and report, while
insightful and very helpful to the court, did not in the last analysis cause it to
conclude that a shared custody arrangement during the school year rather than one
in which the mother had primary physical custody would best serve the interests of
the children.
57 The court did not regard the previous arrangement whereby the father's custodial periods
consisted primarily of time when the children would be asleep as equivalent in nature to that
awarded under the order appealed from.
12
Finally, to the extent that the parties find themselves in agreement on a
certain holiday schedule, the
adherence to such a schedule.58
order appealed from expressly authorizes their
BY THE COURT,
Mary A. Dissinger, Esq.
28 N. 32nd Street
Camp Hill, PA 17011
Attorney for Plaintiff
Robert L. O'Brien, Esq.
17 West South Street
Carlisle, PA 17013
Attorney for Defendant
J. Wesley Oler, Jr., J.
Order of Court, August 21,2001, paragraph 5.
13