Loading...
HomeMy WebLinkAbout2008-4576 MARIE E. HUBER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GUY D. HUBER, : DEFENDANT : 08-4576 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Masland, J., January 16, 2013:-- Before the court is the pro se Petition for Contempt and Modification filed by Marie E. Huber (Mother) on October 2, 2012. The Petition seeks to (1) find the Defendant Guy D. Huber (Father) in contempt of our order of May 14, 2012, (2) modify Father’s custodial rights and responsibilities, and (3) direct Father to undergo psychological and/or drug testing. The latter request was reiterated in Mother’s Petition for Special Relief filed on November 14, 2012. The court denied the special relief on November 19, 2012 because it presented insufficient corroborated facts to constitute an emergency, but permitted the parties to present testimony on this issue at the hearing scheduled on the Petition for Contempt and Modification. On January 11, 2013, the parties appeared in court and presented extensive testimony on the issues of contempt, modification and psychological/drug testing. Additionally, Father made an oral request to have Mother found in contempt and asked the court to appoint a Parenting Coordinator for the parties and an attorney for the children. Although not requested by the court, and unbeknownst to Mother, the three older children, Alexandria, Matthew 08-4576 CIVIL TERM and Sydney, accompanied Father to court. Although Father represented that only Sydney specifically asked to speak to the court, we spoke to all three children in chambers, without the parties present, to get an update on their perspectives since our discussions with them in May of 2012. After speaking to the children, the court attempted to explain its decision to the parties; however, it was obvious that neither its findings nor its conclusions fully sunk in. This is not because either party is incapable of comprehending what was said (both are highly educated and competent). Rather, it is their willingness to hear from the court, let alone each other, that is impaired. Perhaps, the frustration of the parties and the court has waned to the point that we can be more clear and the parties more receptive. In that vein, we offer the following rationale for our decision. CONTEMPT Mother’s petition set forth eight areas of contempt, all but one of which were denied by Father, with much of the blame deflected back on her. However, Father admitted his failure to present Mother with a notarized statement pursuant to paragraph 16.a of our order of May 14, 2012, which we set forth at length: The rules of conduct set forth in this Court Order are binding on both parties as are all other provisions. Therefore, both parents shall carefully read this order in its entirety, paying particular attention to the provisions of paragraph 2, and shall provide a notarized statement to the other parent that they have read it, within 30 days of the date of this Order. The parents shall include in that statement an affirmation that they read “7 Steps to Protecting Our Children” and “Preventing Children from Encountering Dangers Online” at www.darkness2light.com pursuant to paragraph 10. -2- 08-4576 CIVIL TERM Father’s failure to comply with this requirement was willful and inexcusable. As stated in court, we issue orders and opinions for the benefit of the parties. If they refuse to read the orders, their obstinance is no defense to contempt. Even after receiving Mother’s notarized statement, Father made no effort to comply and merely shrugged his shoulders because “it was too late.” To the contrary, submission in July or August would have shown a good faith effort and tempered our judgment. Based on Mother’s “question” following our finding of contempt, it is clear that she does not understand why we did not find Father in contempt of the full litany of allegations, the bulk of which focused on his incivility and his alleged refusal to follow the terms of the order relating to physical custody. We will try to explain our reasoning more clearly. After two hearings, peppered with outbursts and vicious texts, this is not merely a case of “he said – she said,” but is one of abject hatred. What we observed in court was confirmed by the three oldest children in May and January -- the parties treat each other with disdain. Nevertheless, wretched behavior is not akin to willful contempt, and, with ample allegations of incivility on both sides, the court will not tally the expletives to determine the greater offender. We echo the child who said in anguish, “I just want them to stop yelling!” We cannot change what the parties feel in their hearts (that is far above our pay grade), but 1 we can and will direct that their communication with one another be respectable. 1 The court is quite sure that the parties are familiar with the oft quoted advice of Thumper – “If you don’t have something nice to say, don’t say nothing at all.” (Bambi, 1942). We do not expect parties to live under Disneyesque standards, but they are capable of far better communication than that displayed in their texts and emails. -3- 08-4576 CIVIL TERM There are two other reasons we did not hold Father (or Mother) in contempt. First, the parties attended a mediation session with Neighborhood Dispute Settlement on October 17, 2012 and were able to resolve numerous issues that had fueled Mother’s petition. Acting on them now would nullify the benefits of mediation, a process we encourage. In fact, the parties’ limited success represents one sign of hope in the parties’ relationship, and we commend them to continue to use NDS or any similar service. More important than the mediation is the fact that we heard of and sensed an improvement from the children’s perspective. To be sure, there is no détente -- they still feel stuck in the middle between warring combatants. But, amazingly, they are progressing. This is truly the most significant sign of hope – better than a dove with an olive branch. If the parties will simply pause long enough to let the rain slow down, even they may perceive a rainbow. Thus, with these signs of hope, we saw no benefit of adding to our singular finding of contempt. The parties must appreciate the importance of reading our orders, and, particularly, reading, comprehending and complying with the “No Conflict Zone” in paragraph 2. Thus far, with or without a notarized statement, they have failed to do so. We will give them time and space to comply. As directed in court at the conclusion of the hearing, Father has 30 days to submit his statement to Mother and the court. We expect not only words on a page, but also actions that conform with the zone of protection … from both parties. -4- 08-4576 CIVIL TERM MODIFICATION Although we deferred action on the modification of Father’s partial custody rights, by the end of the hearing the parties were nearing a consensus that something needed to be done with Father’s weekday visits (paragraph 4.b of the May 14, 2012 order). Father conceded the difficulty of the economics and logistics for the visits that follow school each day. Because of his irregular employment and his lack of a driver’s license, which requires him to use a “chauffer,” picking the kids up after school each day is impractical. It is also unsettling for the children when he fails to appear. Contrary to Mother’s contention, Father’s problem with these visits is not grounds for contempt. Nevertheless, we do concur with Mother that this must change pending Father finding regular work and/or getting his license. As one child said, “Dad needs to get settled.” We agree and will adjust the provisions of paragraph 4.b accordingly. We will not eliminate Father’s weekday visits, but will shift the onus to him to arrange for and follow through on these visits. PSYCHOLOGICAL EVALUATION Mother’s allegations regarding Father’s mental health and his use of illicit drugs (which by her own admission occurred before the children were born) border on hyperbole. We do not doubt that the circumstances surrounding Father’s employment and living arrangements are depressing, but we will not make the leap to a clinical conclusion. Ironically, Mother’s recurring theme, which she uses as a basis for Father’s allegedly delusional thinking, is that “he blames me for everything.” That may be true, but it is equally clear from Mother’s -5- 08-4576 CIVIL TERM pleadings and testimony that Father could exclaim “she blames everything on me!” Basically, neither party is willing to accept any responsibility for the circumstances of this case. Perhaps, an expert could determine if either parent is in need of therapeutic counseling? However, the court should not order any evaluation of a party or child if it is not designed to assist the court in resolving the issues before it. Although our lay impression is that both parties would benefit from therapeutic evaluations, we have no need for a forensic or investigative evaluation. At this stage of the case, psychological evaluations or diagnoses would not aid the court. To the contrary, we fear that the parties would use any evaluation or diagnosis as a club to pummel the other. Instead, we encourage them once again to seek “private individual therapeutic counseling to maintain their optimum mental health as a parent.” (¶14.a). Recognizing the costs of 2 such counseling we will not require it for either party; however, we will require the parties to engage in co-parenting counseling, no matter the cost. In conclusion, the parties may drive one another crazy, but that does not compel us to order evaluations. If an evaluation will aid the court in determining what is in the best interests of the children, we will order it at the appropriate time. Presently, there is no concern regarding the health, safety and welfare of the children with respect to their relationships with either parent. The children 2 Mother has a counselor. Although the therapeutic effects of such counseling were not evident in court, we encourage her to continue with counseling. -6- 08-4576 CIVIL TERM need and desire ongoing relationships with both parents. Based on the foregoing, we enter the following order. ORDER OF COURT AND NOW, this day of January, 2013, following a hearing on January 11, 2013, we find that it is in the best interest of the minor children, Alexandria, Matthew, Sydney, and Miranda that we modify our order of May 14, 2012 as follows: 1. The provisions of paragraphs 2, “No Conflict Zone and General Rules of Conduct” and 12 “Electronic Contact” are reinforced with the direction that the use of any written or oral vulgarities or obscenities in SHALL CEASE the parties’ communications with one another . 2. The provisions of paragraph 4 relating to the schedule for physical custody, are superceded and replaced by the following: b. During the school year, Father shall be entitled to periods of partial custody following school until 7:30 p.m. Father may exercise this right no more than two days per week (unless the parties otherwise agree) and shall notify Mother no later than Sunday evening at 9:00 p.m. which days in the upcoming week he desires. Mother shall not unreasonably deny any request of Father except where it conflicts with a known extracurricular activity of a child, which shall be posted on the Google calendar pursuant to paragraph 12.c. The parties shall continue to share the responsibility to transport Matthew, Sydney and Miranda to their extracurricular activities, the arrangements for which shall be, to the greatest extent possible, addressed through Google calendar and/or civil communication. Unless the parties otherwise agree, they shall continue to alternate weekends during the school year from Friday after school until Monday when school begins. -7- 08-4576 CIVIL TERM 3. The court refrains from appointing a Parenting Coordinator; however, the parties shall enroll in co-parenting counseling to assist them in complying with this order and meeting the needs of their children. The court envisions this as a short-term process requiring no more than five sessions, the precise number to be determined by the counselor, who shall be selected by Mother from a list of providers covered by Mother’s insurance. Mother shall not select any counselor who is or has been a counselor to the parties or their children. If Mother’s insurance will not cover these sessions, Mother may still select the counselor and the parties shall equally share the costs. 4. The court refrains from appointing an attorney or guardian ad litem for the children. Should the parties be unable to resolve future conflicts through mediation or negotiation and should the need arise to return to the conciliator or court, the court will reconsider the appointment of an attorney or guardian ad litem. 5. In all other respects, our order of May 14, 2012 shall remain in full force and effect. By the Court, Albert H. Masland, J. -8- 08-4576 CIVIL TERM Marie E. Huber, Pro se 1200 Kings Circle Mechanicsburg, PA 17050 Guy Huber, Pro se 1229 Scenery Drive Mechanicsburg, PA 17050 :sal -9-