HomeMy WebLinkAbout94-7082 CivilBETH ANN KRUSEN, : IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
KURT R. KRUSEN, :
Defendant : NO. 94-7082 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., June 20, 1995.
This is a custody action in which the priPcipal issue involves
a proposed relocation of the mother. The Plaintiff, Beth Ann
Krusen (Mother), commenced the action by filing a custody complaint
against Defendant, Kurt R. Krusen (Father), seeking legal custody
and primary physical custody of the parties' son, Matthew Thomas
Antonio Krusen (Child).
A hearing on the matter was held by the writer of this Opinion
on Monday, April 10, 1995. At the conclusion of the hearing, the
court entered the following Order:
AND NOW, this 10th day of April, 1995,
upon consideration of the custody complaint in
the above-captioned matter with respect to the
parties' child, Matthew Thomas Antonio Krusen,
born March 12, 1991, and following a hearing,
the Court finds inter alia that Plaintiff's
proposed relocation to Fargo, North Dakota, is
likely to significantly improve the quality of
life for Plaintiff and the child, that the
relocation is not motivated by a desire to
frustrate the visitation rights of Defendant
or to impede the development of a healthy
relationship between the child and Defendant,
and that feasible arrangements can be made to
ensure a continuing, meaningful relationship
between the child and Defendant
notwithstanding the relocation, and it is
ORDERED and DIRECTED as follows:
1. Legal custody of the child shall be
shared by the parties.
2. Primary physical custody shall be in
NO. 94-7082 CIVIL TERM
Plaintiff, the mother. Temporary or partial
physical custody shall be in the Defendant,
the father, for periods of 20 days every two
months; provided, that during the summer one
such period shall be expanded to five weeks.
Plaintiff shall be responsible for the
expenses and any necessary accompaniment of
the child with respect to custodial exchanges
between Fargo, North Dakota, and BWI Airport.
Nothing herein is intended to preclude
the parties from varying the terms of this
Order by mutual agreement. At such time as
the child is ready to begin school, if the
parties are unable to agree upon a revised
schedule, counsel are requested to petition
the Court for an additional hearing to obtain
an amended order to accommodate the child's
school schedule.[~]
The Father has filed an appeal from this Order to the
Pennsylvania Superior Court. The grounds for the appeal are set
forth in a statement of matters complained of on appeal as follows:
1. The Court erred in its finding that
the move to North Dakota is likely to
significantly improve the quality of life for
~ Subsequent to issuance of this Order of April 10, 1995, the
court was requested by counsel to state with more precision the
times of the Father's temporary or partial custody. Pursuant to
Pennsylvania Rule of Appellate Procedure 1701(b), the following
Order was entered:
In the absence of an agreement by the
parties to the contrary, Defendant's 20-day
periods of temporary or partial custody shall
begin with his receipt of the child at BWI
Airport on the first day of every other month
and end with his delivery of the child to the
Airport, on the 21st day of that month.
Defendant's five-week period of temporary or
partial custody during the summers of 1995 and
1996 shall begin on July 1 and end on August
5.
NO. 94-7082 CIVIL TERM
the child.
2. The Court erred in its finding that
the relocation was not motivated by a desire
to frustrate the visitation rights of the
Defendant or to impede the development of a
healthy relationship between the child and the
Defendant.
3. The Court erred in determining that
twenty (20) days every two months is the same
as the visitation currently enjoyed by
Defendant.
4. The Court erred by determining that
the arrangements suggested by the Plaintiff
for visitation with the child will ensure a
continuing, meaningful relationship between
the child and the Defendant notwithstanding
the relocation.
5. The Court erred in determining that
it is in the best interests of the permanent
welfare of the child to move to North Dakota
and away from his father so as to interrupt
the regular, consistent visitation and periods
of partial custody that Defendant currently
enjoys with his son.
This Opinion in support of the court's order is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The parties, Beth Ann Krusen and Kurt R. Krusen, were married
on June 26, 1982.2 One child was born of the marriage, Matthew
Thomas Antonio Krusen,~ on March 12, 1991.4 The parties separated
2 Notes of Testimony 122, Custody Hearing, Krusen v. Krusen,
No. 94-7082 Civil Term (hereinafter N.T. __).
~ Id.
4 N.T. 58.
NO. 94-7082 CIVIL TERM
in June of 1991.5 They were divorced on October 7, 1993.6
As of the date of the hearing the Child was residing with the
Mother at her home at 12 Highland Drive, Camp Hill, Cumberland
County, Pennsylvania.7 The Father was residing in a home owned by
him at 15 Beaver Road, Camp Hill, Cumberland County, Pennsylvania.8
The Mother instituted the present action for legal custody and
primary physical custody of the Child on December 19, 1994. A pre-
hearing custody conference was held by a custody conciliator on
January 17, 1995. Following the conference, the parties agreed to
an interim order, pending a court hearing, which provided, inter
alia, that legal custody be shared by the parties and that primary
physical custody be in the Mother. This agreed-upon order, issued
by the court on January 26, 1995, further provided that the parties
submit themselves, their minor child, and any other necessary
persons, to a custody evaluation by a professional selected by
counsel for the purpose of determining the best interests of the
Child with respect to the Mother's proposed relocation.
Evidence presented at the subsequent hearing before the court
tended to show the following: After the parties' marriage in 1982,
they lived together in Kansas while the Father completed his
N.T. 122.
Id.
N.T. 54.
N.T. 80.
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NO. 94-7082 CIVIL TERM
veterinary schooling.9 They then moved to the Carlisle area so
that the Mother could attend the Dickinson School of Law.~° The
Mother became pregnant with the Child in 1990 and shortly
thereafter difficulties arose in the marriage.~ The Father was
experiencing problems with the concept of being a parent and was
expressing dissatisfaction with the marriage in general.TM The
Father suggested that the Mother have an abortion but the Mother
refused to do so and continued with the pregnancy.~3
In June of 1991, three months after the Child's birth, the
Father left the marital home.TM Approximately one month later, on
July 18, 1991, the Father told the Mother that he was involved in
an extra-marital relationship and had been ever since February of
1990.~s
Over the course of the next year or so, up until October of
1992, the parties made various attempts at reconciliation.~6 During
this time period the Father was moving into and out of the marital
N.T. 101.
N.T. 77.
N.T. 58.
N.T. 12, 58.
N.T. 58.
N.T. 12, 122.
N.T. 61, 13.
N.T. 66, 88-89, 18.
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NO. 94-7082 CIVIL TERM
residence.~7 Attempts at reconciliation ultimately ended and the
parties were divorced on October 7, 1993.~8 The parties initially
agreed upon a custody arrangement whereby the Mother had primary
physical custody of the Child and the Father had temporary custody
on alternating weekends and Wednesdays overnight.~9
Since its inception the custody arrangement has seemed to work
successfully. The Mother has been very flexible in permitting the
Father to spend additional hours with the Child during non-
scheduled partial custody periods.2° The Mother has also agreed to
various modifications in the custody schedule due to the Father's
business or travel schedules.2~ After some debate, the Mother also
acquiesced in a change of the Child's daycare center and agreed to
expand the Father's partial custody schedule to include alternating
Monday nights in an effort to allow the Father the opportunity to
spend additional time with the Child.2~ The Mother has been
~7 N.T. 88-89.
~8 N.T. 122.
~9 N.T. 67.
20 N.T. 14.
N.T. 14, 67. The Father has an irregular and inconsistent
work schedule because he engages in various part-time and fill-in
jobs as a veterinarian. N.T. 14. The Father concedes that he has
gone on a number of vacations, that he does travel quite a bit, and
that as a result he has missed some scheduled temporary custody
time with the Child. N.T. 87-88, 103.
22 N.T. 90-92.
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NO. 94-7082 CIVIL TERM
cooperative concerning the custody arrangement and has not
attempted to block or frustrate the Father's access to the Child.23
In May of 1993, after the parties' separation, the Mother,
while on a business trip, met Michael Hamerlik, Esq., at a Blue
Cross/Blue Shield Lawyer's conference in New Orleans, Louisiana.24
The friendship slowly progressed into a romantic involvement and
the couple eventually became engaged.2s The Mother then decided
that it would be in both her best interest and the best interest of
the Child for them to relocate to Fargo, North Dakota, where the
Mother's fiance currently owns his own home and holds the position
of Vice-President and General Counsel of Blue Cross/Blue Shield.~6
With regard to the matter of how the proposed relocation to
Fargo, North Dakota, would be likely to improve the Child's quality
of life, the Mother testified that
[m]oving to North Dakota with me, Matt [the
Child] would have a stay-home mom. He'd have
additional siblings.27 He'd have a strong
family unit in a community where it's more
laid back. It's the midwest. It's a
different lifestyle. He would have the
benefit of a stepdad with a high earning job
N.T. 20.
N.T. 131, 63-64.
N.T. 64, 131-32.
N.T. 18, 129.
Testimony was presented at the hearing as to the Mother's
intention to marry Mr. Hamerlik and to have additional children
with him. N.T. 18, 65.
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NO. 94-7082 CIVIL TERM
[$108,000.00 per year]28 that has reasonable
work hours, and he would have extended
family .... He would have all of this and
still be able to maintain relatively the same
relationship with his dad.29
Of further benefit to the Child would be the location of his
proposed residence in North Dakota within three blocks of the
school that he would be attending and within three blocks of
Lindenwood Park, a large recreational and sporting facility.3°
With regard to the matter of how the proposed relocation would
affect the relationship of the Child to his Father, the evidence
presented by the Mother tended to show that both she and her fiance
were quite willing to ensure that the Child would maintain a good,
strong relationship with the Father in spite of the Child's
relocation to North Dakota.3~ Both indicated that they would bear
the financial responsibility for the Father's periods of partial
custody of the Child.32
The Mother believes that feasible arrangements can be made to
ensure a continuing, meaningful relationship between the Child and
the Father notwithstanding the relocation. The Mother feels that
substitute custody arrangements can be made with as little
N.T. 134.
N.T. 72-73.
N.T. 130, Plaintiff's Exhibit 2.
N.T. 73.
N.T. 10-11.
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NO. 94-7082 CIVIL TERM
disruption as possible to the Child's life. The Mother testified
that both she and her fiance would fly with the Child round-trip
until he has reached at least the age of five.33 At such time as
the Child appeared old enough to fly with an airline-provided
escort, the Mother would drive the Child, three and one-half hours,
to the Minneapolis airport and would accompany him to a plane which
would fly non-stop to Baltimore-Washington International Airport
(BWI).TM When questioned about these proposed custody arrangements,
the Father replied that he would be willing to pick up and deliver
the Child at and to BWI if doing so would eliminate the Child's
having to change planes. The Father testified that this would not
be "a major hardship [on him and] if it's in [the Child's] best
interest, [he'd] certainly [agree] to do [it]."3s
With regard to the matter of how the Mother's proposed
relocation would be likely to improve the quality of life for
herself, her evidence tended to show that as of the time of the
hearing she was engaged to Michael Hamerlik,~6 who resided at 1549
Eighth Street South in Fargo, North Dakota.37 He is currently
employed with Blue Cross/Blue Shield of North Dakota as its Vice-
~ N.T. 55.
~ Id.
~s N.T. 112.
~6 N.T. 16.
~7 N.T. 129.
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NO. 94-7082 CIVIL TERM
President and General Counsel.TM Prior to occupying this position,
Mr. Hamerlik was elected to the North Dakota legislature for a term
of six years.39 Mr. Hamerlik's hours of employment are normally
from 8:00 a.m. to 4:30 p.m., although he frequently does arrive
home earlier than 4:30 p.m.4° Since Mr. Hamerlik's salary of
$108,000.00 per year4~ is adequate to support himself, the Mother,
and the Child, it would not be necessary for the Mother to be
employed. This would allow the Mother the opportunity to remain at
home to raise the Child and to begin a new family with Mr.
Hamerlik, thus providing the Child with a stronger family unit.42
With regard to the matter of the impact that the proposed
relocation would have on the relationship between the Father and
the Child, the evidence presented by the Father tended to show that
the Father is an active participant in the Child's life and is a
fit parent.4~ The Father has spent more time with the Child than
provided for in the parties' initial custody arrangement.4~ The
Father believes that the Child's move to North Dakota would result
~8 Id ·
~9 N.T. 134.
4o N.T. 129 ·
"~ N.T. 134 .
42 N.T. 72-73.
~ N.T. 39-40, 42, 90.
~4 N.T. 40.
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NO. 94-7082 CIVIL TERM
in a weakening of the relationship between himself and his Child.4s
With regard to the matter of the type of family unit that the
Father could provide for the Child were the Child to remain in
Pennsylvania, the Father testified that as of the time of the
hearing he was involved in a relationship with a Dorothy Kuzo, who
lives at 716 Rockford Drive, Harrisburg, Dauphin County,
Pennsylvania.4~ Ms. Kuzo is divorced and is the mother of two
children who are in her custody, a daughter who is six years of age
and a son who is three years of age."7 As of the time of the
hearing, the Defendant and Ms. Kuzo had no plans to marry.~8
With regard to the custody evaluation referred to earlier in
this Opinion, Dr. Arnold T. Shienvold, a clinical psychologist with
Riegler, Shienvold & Associates in Harrisburg, Pennsylvania, who
was selected by the parties' counsel, recommended that primary
physical custody remain with the Mother and that a substantial
period of partial custody be awarded to the Father. Specifically,
Dr. Shienvold recommended temporary custody periods of ten days per
month and extended periods of time during the summer and holiday
seasons.49
~s N.T. 94.
4~ N.T. 123.
~ Id.
48 N.T. 124.
49 N.T. 29-30.
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NO. 94-7082 CIVIL TERM
Dr. Shienvold based his recommendation on the following facts
and observations: (1) the Mother has always served as the primary
caregiver for the Child and the Child is primarily bonded both
psychologically and emotionally to his Mother;so (2) the Mother's
proposed relocation did not appear to be an attempt to block the
Father's access to the Child;5~ (3) the Child's move to North Dakota
would not decrease the amount of time that the Father had for
temporary custody with the Child;52 (4) the Mother has successfully
attempted to balance her career with her family values;~3 (5) the
Child would benefit by having a non-working mother;s4 and (6) the
20 N.T. 11. When the Child was asked by the psychologist to
draw a family picture, the picture consisted of his first drawing
his Mother, then drawing his Mother's fiancee, and then drawing his
Father. The psychologist felt that it was significant that the
family picture was drawn when the Father brought the Child to the
psychologist's office and it occurred at that visit after the Child
had spent thirty or forty minutes in the psychologist's office
playing with his Father. N.T. 16.
N.T. 27.
N.T. 27-28.
N.T. 49. The Mother resigned from her job as an attorney
at Pepper, Hamilton & Sheetz, in Harrisburg, Pennsylvania, at a
salary of $58,000.00 per year, because it was stressful and was not
conducive to starting a family or spending a lot of time at home.
She then accepted a job with the Department of Education at an
annual salary of $ 35,000.00. The Mother then felt compelled to
resign from her job with the State because she realized that she
would need more finances in order to raise the Child as a single
mother. She accepted a job with Blue Cross/Blue Shield at a salary
of $52,000.00 per year, even though Pepper, Hamilton & Sheetz had
offered her $72,000.00 per year to return to her former job. N.T.
59-61.
~4 N.T. 52.
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NO. 94-7082 CIVIL TERM
Child would benefit by having a strong family unit, including
additional siblings,ss
STATEMENT OF LAW
"In Pennsylvania, custody and visitation matters are decided
on the basis of the best interests of the child standard,
considering all factors which legitimately have an effect upon a
child's physical, intellectual, moral and spiritual well-being."
White v. White, 437 Pa. Super. 446, 450, 650 A.2d 110, 112-13
(1994). "[T]he best interests of the child are more closely allied
with the interests and quality of life of the custodial parent and
cannot, therefore, be determined without reference to those
interests. In the context of relocation cases this principle
translates into an understanding that when relocation is likely to
result in a substantially enhanced quality of life for a custodial
parent, often the child's best interests will be indirectly but
genuinely served." Gruber v. Gruber, 400 Pa. Super. 174, 183, 583
A.2d 434, 438 (1990).
One of the factors to be considered in a child custody case,
such as the present one, is who has been the primary caretaker.
Frank & Gale, Pennsylvania Family Practice Manual §9.02(B)(2), at
334 (1990). "[W]here two natural parents are both fit, and the
child is of tender years, the trial court must give positive
consideration to the parent who has been the primary caretaker.
5~ Id.
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NO. 94-7082 CIVIL TERM
Not to do so ignores the benefits likely to flow to the child from
maintaining day to day contact with the parent on whom the child
has depended for satisfying his basic physical and psychological
needs." Commonwealth ex rel. Jordan v. Jordan, 302 Pa. 421, 425,
448 A.2d 1113, 1115 (1982).
With respect to child custody, "relocation" cases present
special difficulties for the courts. See Gruber v. Gruber, 400 Pa.
Super. 174, 583 A.2d 434 (1990). "[I]n every relocation dispute
the following interests must be accommodated as nearly as possible:
the custodial parent's desire to exercise automony over basic
decisions that will directly affect his or her life and that of the
[child]; a child's strong interest in maintaining and developing a
meaningful relationship with the non-custodial parent; the interest
of the non-custodial parent in sharing in the love and rearing of
his or her children; and, finally, the state's interest in
protecting the best interests of the children." Id. at 184, 583
A.2d at 438-39. The Pennsylvania Superior Court has stated the
resultant rule in relocation cases as follows:
[I]n order to justify a relocation of [a
child] by the custodial parent, the custodial
parent must demonstrate (1) that the move is
likely to significantly improve the quality of
life for the parent and the [child]; (2) that
the move is not motivated simply by a desire
to frustrate the visitation rights of the non-
custodial parent or to impede the development
of a healthy relationship between the child
and the non-custodial parent; and (3) the
feasibility of creating substitute visitation
arrangements to ensure a continuing,
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NO. 94-7082 CIVIL TERM
meaningful relationship between the [child]
and the non-custodial parent.
Kaneski v. Kaneski, 413 Pa. Super. 173, 179, 604 A.2d 1075, 1078
(1992).
In assessing the feasibility of substitute visitation
arrangements the court should consider "the degree to which [it]
can be confident that the custodial [parent] will comply
cooperatively with alternate visitation arrangements which the move
may necessitate." Gruber v. Gruber, 400 Pa. Super. 174, 185, 583
A.2d 434, 439 (1990). The court must also recognize that when a
custodial parent seeks to relocate at a geographical distance to
secure substantial advantage for the custodial parent and child,
and the non-custodial parent challenges the move, the move should
not be disallowed simply because visitation cannot continue in its
existing pattern. Id. at 186, 583 A.2d at 440. "The court should
not insist that the advantages of the move be sacrificed and the
opportunity for a better and more comfortable life style for the
[custodial] parent and [the child] be forfeited solely to maintain
weekly visitation by the [noncustodial parent] where reasonable
alternative visitation is available and where the advantages of the
move are substantial." Id.
APPLICATION OF LAW TO FACTS
In the present case, the Mother's history as primary caretaker
of the Child, as well as the basic fitness of both parents,
militate in favor of a continuation of the Mother's status as
15
NO. 94-7082 CIVIL TERM
primary physical custodian of the Child, with provision for liberal
temporary custody in favor of the Father, as provided for in the
order presently on appeal. The Mother has met her burden of
showing that a proposed relocation to North Dakota at this time
would be likely to significantly improve the quality of the life
for her and the Child. The proposed relocation would allow the
Mother to stay at home and raise the Child, would allow the Mother
to bear and raise additional siblings, thus creating a stronger
family unit for the Child, would place the Child in a more relaxed
environment, and would provide the Child with the benefit of having
a caring stepfather with a high earning job that has reasonable
work hours.
Furthermore, the Mother has met her burden of showing that the
move is not motivated by a desire to frustrate the Father's
temporary custody rights, and of showing that substitute custody
arrangements are likely to be successful. In the past, the Mother
has proved to be quite flexible in permitting the Father to spend
additional hours with the Child during non-scheduled partial
custody periods. The Mother has also agreed to various
modifications in the partial custody schedule due to the Father's
business or travel schedules.
In addition, both the Mother and her fiance are willing to
ensure that substitute temporary custody arrangements can be made
so that the Child will be able to maintain a continuing, meaningful
16
NO. 94-7082 CIVIL TERM
relationship with his Father. The Mother has indicated that both
she and her fiance would accept financial responsibility for flying
the Child to visit his Father and would arrange the Child's flights
in such a manner as to cause as little disruption as possible to
the Child's life.56 The fact that the new schedule will not be
precisely equivalent to the parties' present arrangement does not,
in itself, justify denial of the Mother's proposed relocation. For
these reasons, the court believes that its custody order of April
10, 1995, was appropriate.
John J. Connelly, Jr., Esq.
108-112 Walnut Street
Harrisburg, PA 17101
Attorney for Plaintiff
Michael L. Bangs, Esq.
525 North Twelfth Street
Lemoyne, PA 17043
Attorney for Defendant
:re
s6 With regard to the schedule as set forth in the order under
appeal, it is basically in accord with that recommended by the
psychologist selected by the parties' counsel. The schedule
adopted by the Court, awarding 20-day periods of partial custody
every two months for the Father, as opposed to 10-day periods every
month as suggested by the psychologist, was intended to involve
less travel time for the Child.
17