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HomeMy WebLinkAbout2010-6129 KATHERINE S. RIFE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOHN EARL RIFE, JR., : DEFENDANT : 10-6129 CIVIL TERM IN RE: CUSTODY OPINION Masland, J., June 28, 2012:-- I. BACKGROUND Katherine Susanna Foster, formerly known as Katherine Susanna Rife (Mother), and John Earl Rife, Jr. (Father) are the natural parents of Jonathan X. Rife, born May 6, 2006. Mother initiated this action on September 23, 2010, with a complaint for divorce and custody. A final decree in divorce was entered on November 23, 2011. On October 28, 2010, a custody conciliation conference was held, which resulted in an agreed upon order dated November 2, 2010. Pursuant to that order, the parties shared legal custody of Jonathan, which in essence amounted to Mother having physical custody during the week and Father having physical custody over the weekends. A second conciliation conference was held on December 9, 2010, following Mother’s move from Enola to Newville. The order of court entered on December 14, 2010, established a hearing date on April 1, 2011, with the parties sharing physical custody on an alternating weekly basis pending the hearing. On March 23, 2011, counsel for Plaintiff informed the court that the hearing would no longer be necessary because “the parties have 10-6129 CIVIL TERM reached a resolution of the matters which they initially were not able to agree upon.” That resolution was relatively short lived and on October 25, 2011, Mother petitioned for a modification of the custody order. Following a conciliation conference on November 30, 2011, this matter was reassigned to the undersigned and a hearing was scheduled for March 15, 2012. The court heard testimony on that date but was unable to conclude the hearing. An additional hearing date was scheduled for April 19, 2012, but was rescheduled twice due to complications on the part of counsel and the court. On June 11, 2012, the court was able to conclude testimony in this matter. II. FINDINGS AND ANALYSIS A. Introduction As we advised the parties at the conclusion of the hearing on June 11, 2012, they may not have been the best of spouses, but they have been good, albeit not perfect, parents and Jonathan is a good kid by all accounts. If the parties resided in the same locale, an order would be relatively simple to compose because Jonathan’s time with both parents should not be maximized. Unfortunately, with Father living in Dauphin, Dauphin County and Mother residing in Newville, Cumberland County we are constrained to review the custody factors more closely to determine where Jonathan should reside during the school year. Again, as we told the parties at the conclusion of the hearing, our opinion will not delve deeply in the pros and cons presented by and against both parties. We firmly believe that the scalpels they wielded have cut deeply enough and the long-term best interest of Jonathan will not be served by the court severing the -2- 10-6129 CIVIL TERM few remaining ligaments that hold these parties together. Therefore, the following analysis may appear to be superficial; however, the court is prepared to make additional incisions if forced to by an appeal. We would rather the parties use this as an opportunity to apply balm not only to their wounds but also to the inadvertent wounds their actions have inflicted on their son. B. Review of Custody Factors In our review of all 16 factors enumerated in 23 Pa.C.S. § 5328(a), we find that the following factors warrant discussion. Which party is more likely to encourage and permit frequent and (5328(a)(1)) continuing contact between the child and another party Sadly, as with the majority of custody cases that come before the court, neither parent impressed us as being more encouraging than the other. On the positive side, there are glimmers of hope with both parents that they can overcome their own animus and keep Jonathan’s best interest at the forefront. The parental duties performed by each party on behalf of the (Section 5328(a)(3)) child We find that Mother was the primary caretaker for Jonathan prior to the separation in 2010. Father contends that Mother was a bad housekeeper and submitted numerous photographic exhibits of the condition of the house following Mother’s departure. Based on the testimony of all witnesses we are satisfied that, to the extent Mother fell short in her housekeeping, this was attributable to the emotional distress she felt during the time of her mother’s illness and death. We are further satisfied that Father also fell short in carrying his share of the household cleanup burden. If we are indeed directed to help others carry their -3- 10-6129 CIVIL TERM burdens, we should surely do so for our spouses, especially when they are suffering the effects of the potential loss of a parent. Further, we note that the mess Mother left behind on the day she moved out of the house was primarily the result of spite and not sloth. Similarly, the editorial comments supplied by Father as text on the aforesaid exhibits, demonstrated an equally strong level of spite and sinicism. Regardless, the mess did not pose a dangerous life threatening condition for the children. In fact, Father was able to clean the mess up, by his own textual account on the exhibits, within a matter of hours, which would not be possible if the place was a dump to the core. On this factor, we accord greater weight to the fact that Mother was the primary caretaker for Jonathan and his sisters and accord less weight to the short-term deficit in housekeeping abilities. The need for stability and continuity in the child’s education, family (5328(a)(4)) life and community life Because the core issue before us is where Jonathan should go to school, our order will establish some “stability and continuity” with his education. Therefore we view this factor prospectively and examine the merits of the Big Spring School District (Mother’s choice) vis-à-vis the Bible Baptist School (Father’s choice). On a positive note, at least the parties agree Jonathan should no longer attend Cyber School. Unfortunately, from that point on their opinions diverge dramatically. We do not doubt that the test scores from Bible Baptist are higher than those from Newville Elementary – this is something we would expect in -4- 10-6129 CIVIL TERM comparing any private school to a public school. That does not mean that there are no opportunities to excel in the Big Spring School District. Generally, one’s success in school is largely a function of parental involvement and finding a positive group of peers. Not only can that occur in a school such as Bible Baptist, but it can occur in a small, community-based school district such as Big Spring. In fact, Big Spring provides an opportunity for more of community life because its student body comes from the same general area and not from the greater region such as Bible Baptist. If the choice were between Bible Baptist and the Harrisburg School District, and all other factors were equal, Bible Baptist would win easily. However, we do not find that the Newville School District offers an education so inferior to that of Bible Baptist to make the choice of schools determinative of the custody arrangements. Ultimately, we find the opportunities afforded by the respective schools to be different equal. (5328(a)(6)) The child’s sibling relationships Both Mother and Father have primary custody of nine-year-old daughters from previous marriages. Sadly, it appears that both parties have engaged in discussions with their children regarding who is “part of the family.” Some of these discussions may have been from a technical perspective, but others were likely to been generated by an attitude of “us versus them.” Regardless, we are satisfied that both girls get along with their brother and those relationships need to be maintained. In the absence of a significant negative influence by one sister with respect to Jonathan, we refuse to lay any fault at the feet of these young -5- 10-6129 CIVIL TERM girls and permit them to feel any sense of blame regarding where their brother resides. All three children are straggling desperately to please the adults in their lives under a set of circumstances that are far from ideal. We will not add a single ounce of pain to their burdens. The attempts of the parent to turn the child against the other parent except in the cases of domestic violence where reasonable safety (5328(a)(8)) measures are necessary to protect the child from harm Fortunately, there have been no blatant attempts by either party to turn Jonathan against the other parent. Nevertheless, we are concerned that there may be subtle attempts to do so, primarily by Father. We infer this from the comments attributed to Jonathan in which he apparently questions his Mother’s faith and, perhaps her role in the divorce. Ultimately, we do not deem this factor to be determinative of our decision, but we wish to draw the parties’ attention to our concern. They must be aware that they can indirectly or inadvertently undermine the relationship of the other parent with ill-advised comments. Hopefully, this will cease. Which party is more likely to maintain a loving, stable and nurturing relationship with the child adequate for the child’s emotional needs (5328(a)(9)) Lest there be any mistake, and in keeping with our preliminary comments about the abilities of the parties, we find that both are capable of providing Jonathan with an atmosphere that supports his emotional needs. -6- 10-6129 CIVIL TERM Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of (5328(a)(10)) the child Again, both parties are capable of attending to Jonathan’s needs. We do note that Jonathan has consistently used Carlisle Pediatric Associates for his healthcare, something he can more easily do when in the custody of Mother. Otherwise, this factor is relatively equal. The proximity of the residences of the parties (5328(a)(11)) Perhaps the parties live closely enough to one other to enable a 50/50 shared arrangement to take place. However, Jonathan’s schooling renders that impractical. The lengthy commute from Dauphin to Newville or from Newville to Bible Baptist would place this child on the road for an inordinate amount of time. Each party’s availability to care for the child or ability to make (5328(a)(12)) appropriate child-care arrangements Although there was testimony about Father having some travel obligations with work, his schedule appears relatively consistent and we are satisfied that he can make proper arrangements when Jonathan is in his custody. Likewise, Mother’s work situation enables her to make appropriate arrangements. We must note that during our second hearing Father raised the specter of an unhealthy environment at the childcare facility chosen by Mother, pointing to arguments/fights Jonathan may have had with other boys. The alleged behaviors between Jonathan and his playmates do not appear to be egregious in nature. In fact we agree with Mother that this would appear to be a case of boys being boys. -7- 10-6129 CIVIL TERM The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another … (5328(a)(13)) Although Father claims Mother takes the position that it is “my way or the highway,” our impression of the parties is that the shoe lies on both feet. It appears to the court that Father has a negative opinion of just about everything that Mother has done or decided, including her choice of schools, daycare and physicians, not to mention her general ability to nurture a child or maintain a house. On the other side, Mother expressed concern with the intensity of Father’s faith (not a concern of the court) and with Jonathan’s access to violent video games (a significant concern of the court). Ultimately, both parties will need to be less adamant and more conciliatory in their attitudes or Jonathan will pay a price far steeper than the cost of legal fees. Perhaps, this case is ripe for co-parenting counseling as was ordered by the Honorable Kevin A. Hess in November of 2010. Clearly, whatever counseling was done then did not stick. Therefore, we encourage the parties to discuss the need for such counseling. If an agreement cannot be reached, we stand ready to address the petition of either party with respect to that issue. The mental and physical condition of a party or member of a 5328(a)(15)) parties’ household As previously noted, Father’s attempt to raise the specter of a mental health issue for Mother does not have traction. To the extent that Mother was depressed in 2009 over the health of her mother, that has not continued to the present in any way, shape or form that would impact her ability to care for Jonathan. -8- 10-6129 CIVIL TERM III. CONCLUSION Based on our analysis of all 16 custody factors, we deem it to be in the best interest of Jonathan that the parties share legal custody. Further, we find that it is in the best interest of Jonathan that the parties share physical custody with Jonathan residing with Mother during the school year and attending the Big Spring School District. We will incorporate this conclusion in our accompanying order of this date along with other directives to the parties that are designed to enable Jonathan to thrive amidst difficult circumstances. By the Court, Albert H. Masland, J. Susan Kay Candiello, Esquire 4010 Glenfinnan Place Mechanicsburg, PA 17055 For Plaintiff Heather E. Verchick, Esquire 215 Pine Street, Suite 200 Harrisburg, PA 17101 For Defendant :saa -9-