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HomeMy WebLinkAbout98-5096 CivilRICHARD W. POWELL, Plaintiff LEANN POWELL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 98-5096 CIVIL CIVIL ACTION - LAW IN CUSTODY IN RE: OPINION PURSUANT TO RULE 1925 Plaintiff and defendant are the natural parents of a daughter, Alexandra Powell, date of birth July 11, 1996. The parties were separated in 1998 and the mother moved to Westmoreland County with the parties' two children. After a venue issue was resolved, a full custody hearing was held before Judge Edgar Bayley in January 1999. Judge Bayley ordered shared physical and legal custody of Alexandra on an alternating weekly basis. Alexandra is now 5 years old and ready to begin kindergarten. The parties reside in separate counties, some distance apart, and the shared custody schedule can no longer be accommodated. On April 12, 2001, plaintiff, filed a Petition to Modify Custody seeking shared legal custody and primary physical custody. A custody conference was held before Melissa Greevy on May 8, 2001, at which time the matter was referred to Dr. Pauline Wallin for a custody evaluation. Dr. Wallin issued her report on September 12, 2001, in which she recommended that the father have primary physical custody. The defendant has appealed the November 9, 2001 Order of Court giving primary physical custody to the father. Her statement of matters complained of on appeal sets out two assignments of error. The defendant argues that the Order is not in the best interest of the child, 98-5096 CIVIL and considering the best interest of the child, the Court should have ordered primary physical custody to the mother with partial periods of custody in father. A custody hearing had been held before this Court on October 1,2001 and the following facts were adduced. The custody evaluator, Dr. Pauline Wallin, testified about her report. The observations by Dr. Wallin included psychological evaluations of Mr. And Mrs. Powell and of Alexandra. She testified about the interactions between Mr. Powell and Alexandra. She noted that Mr. Powell was very loving and affectionate with his daughter. She also observed that he was very comfortable with Alexandra. She explained that sometimes one sees fathers act awkwardly while playing fantasy games with little girls but Mr. Powell seemed comfortable engaging in such activity with his daughter. According to Dr. Wallin, Mr. Powell was positively reinforcing with Alexandra and he set limits, gently but firmly. She stated that Mr. Powell used time-out and counting when disciplining Alexandra and that these were appropriate forms of discipline to use with Alexandra. The report related some past legal problems for Mr. Powell. He was arrested in 1976 for possession of marijuana. Since this was over twenty years ago, Dr. Wallin did not feel it was that significant. More significant to her was Mr. Powell's conviction for driving under the influence in 1992. However, he informed her that he has not consumed alcohol since his diagnosis of Hepatitis C. Mr. Powell testified that he had served four years in the Army before being honorably discharged. After serving in the military he went to college. He graduated from Clarion University with a degree in Science and Psychology. Currently, he has his own business as a computer consultant. He typically works between 8:00 a.m. and 5:00 p.m. Monday through Friday. 2 98-5096 CIVIL Mr. Powell testified that he married Mrs. Powell on August 19, 1995. They separated July 23, 1998 and the divorce was finalized in March of 2000. He stated that he and Mrs. Powell had originally met at a bar that her grandfather had owned in 1981. They dated for a few months and eventually separated. He learned that she was pregnant and they began dating again. The question of whether he was the father of the baby remained in doubt. They separated again with the expectation that it would be permanent. Then, in early 1995, Mr. Powell heard from LeaAnn. She told him that her daughter, Rachelle, had been asking questions about her natural father, saying that she wanted to meet him. Rachelle was thirteen at the time. He soon learned that LeaAnn's first husband had adopted Rachelle and that there had been no father listed on the birth certificate. Mr. Powell eventually adopted Rachelle after he and Mrs. Powell were married. Mr. Powell confessed to a stormy relationship with Rachelle. She had been attending Milton Hershey School and was home only on weekends. She would seclude herself from Mr. Powell for the whole weekend and it was difficult to build a relationship with her. Ultimately, Rachelle was enrolled in a public school in an attempt to help the situation. Mr. Powell stated that Rachelle resented him as an authority figure. In the meantime, he and Mrs. Powell argued frequently over how to discipline and parent her. Mr. Powell indicated that at the previous custody hearing in 1998, he conceded primary custody of Rachelle largely because she had voiced a preference to live with her mother. He acknowledged that, even now, he and Rachelle do not have a good relationship. Another issue at the hearing involved Mr. Powell's enrolling Alexandra into kindergarten. He stated his feeling that if he did not send her to kindergarten, she would not have kept up with other children her age.. He also felt that it was in her best interest to begin 98-5096 CIVIL school with the same children that she had known in day-care. He claims to have informed Mrs. Powell of this decision. Mrs. Powell acknowledges that he asked her for Alexandra's dental records so that he could enroll her into school but did not tell her that he was definitely enrolling her. Mrs. Powell does not have Alexandra in school because she was waiting for the determination of the custody case. Dr. Wallin's report indicated that LeaAnn Powell's MMPI indicated mild defensiveness; not unusual given the situation. She also noted that LeaAnn Powell's clinical scales indicated apathy and very low energy, which can sometimes be related to an underlying depression. Mrs. Powell informed her that she was not currently being treated for depression but had been in the past. She indicated that Mrs. Powell was low key and affectionate in her interactions with Alexandra. She reported that Mrs. Powell was a very supportive parent. Whenever Alexandra would become aggressive in her play, she would distract her rather than address it directly. When Alexandra was playing, Mrs. Powell would watch and pay close attention to physical hazards around Alexandra. Mrs. Powell testified that she works as a nurse, specifically, an LPN. She generally works on the weekends. When working, she either drops Alexandra off at her grandmother's house or Alexandra stays home with her sister. During the time mother and daughter are together, they play games and Alexandra helps to fix dinner and clean up. Mrs. Powell also helps Alexandra to learn her alphabet and her numbers. According to Mrs. Powell there are many relatives in the Pittsburgh area. At the hearing, both parties testified concerning an incident involving Mr. Powell with a gun. Mrs. Powell testified that Mr. Powell had been out drinking and came home one night very 4 98-5096 CIVIL upset after arguing with her. He handed her a gun and told her to shoot him, that he was worth more dead. Mr. Powell agreed that he had had too much to drink that night after fighting with her. He said the dispute was about Mrs. Powell diverting money out of her paycheck and money out of their joint account and putting it into her own account. He said he handed her the gun and told her that if she really wanted all his money, the real money was in his life insurance. Mrs. Powell also expressed concern about Mr. Powell's diagnosis of Hepatitis C. However, Mr. Powell and Dr. Wallin testified that the doctor treating Mr. Powell informed them that he was of no danger to Alexandra. There is no known history of transmission through saliva or any other bodily fluids other than open to open wound. Mr. Powell testified that he has taken precautions against transmitting the disease by discussing it with Alexandra and telling her if she ever sees his blood, she should avoid it. In addition, he takes other precautions, such as using band aids, to assure that no one comes into contact with an open wound. Dr. Wallin described Alexandra as bright, outspoken, strong-willed, and extremely independent. She knows what she wants within her cognitive capability. She stated that her teacher described Alexandra as a leader and that she gets along with other children. Dr. Wallin performed two tests with Alexandra. The first test involved Alexandra drawing a picture. Dr. Wallin indicated that the size of the drawing and the detail was appropriate for her age. She observed that Alexandra's picture took up a good portion of the page, indicating that she feels fairly important. The other test performed was the Children's Apperception Test, which involves a series of ten picture cards. One of the pictures was of a mama bear, papa bear, and a baby bear. Alexander described it the bears playing tug of war. Dr. Wallin opined that this represented her parents fighting over her. Dr. Wallin testified that most 98-5096 CIVIL of Alexandra's stories had a baby or young child hiding or running away, and adults looking for her. She expressed concern that Alexandra was aware of the animosity between her parents. Dr. Wallin also drew two houses with a bunny sitting between the houses. The bunny represented Alexandra. She then told Alexandra that one house was the bunny's mommy's house and the other was daddy's house. When she asked her which house does the bunny want to go to have fun, the bunny went to her mother's house. When asked about issues of problem- solving, protection, feeling sick or hurt, the bunny went to her dad's house. When asked where she wanted to live, Alexandra said she wanted to live with her mother. However, on the next visit, without being asked, Alexandra told Dr. Wallin that she wanted to live "with her mommy." When asked who told her to say that, after some hesitation, Alexandra told Dr. Wallin that it was her mother. When interviewing Alexandra's teacher about Mr. Powell's parenting, the teacher informed Dr. Wallin that Alexandra always came to school clean and well groomed. Also, whenever she sends a list of things home with Alexandra to be done, Mr. Powell always follows through. Dr. Wallin's report is critical of both parents for allowing their animosity to impact their child. Both parents have made sarcastic comments about each other in the presence of the child. They cannot even agree on the same name for Alexander. Mr. Powell calls her Alex and Mrs. Powell calls her Ali. Dr. Wallin recommended that the parents share legal custody of Alexandra. She also recommended that Alexandra should spend the school year with her father and the summer with her mother. Dr. Wallin testified that Alexandra was a strong-willed child and she would need structure. She felt that Alexandra's father provided more structure and discipline for her than her 98-5096 CIVIL mother. However, Dr. Wallin did feel that Alexandra had a loving relationship with her mother and she recommended that Alexandra should spend all but two weeks with her mother in the summer. On November 9, 2001, following consideration of the testimony adduced at the hearing, this Court ordered that the parties share legal custody of their daughter Alexandra Powell, and that, commencing in January 2002, custody of Alexandra, during the school year, be in her father. The order further provided the defendant, LeaAnn Powell, with custody of Alexandra on alternating weekends during the school year and for the summer from five days after the last day of school until five days before the first day of school. The order also gave William Powell visitation on alternating weekends during the summer as well as well as one full week. In entering our order, we, essentially, followed the recommendation of Dr. Wallin. The law is clear that we are not bound by the opinion of an expert witness. See Murphey v. Hatala, 350 Pa. Super. 433, 504 A.2d 917 (1986). While the court is obligated to consider the testimony of experts, we are not obligated, of course, to delegate to those experts the responsibility of making the decision in a custody case. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 485 A.2d 1166 (1984). The paramount consideration in this case, of course, is the best interests of the child involved. Garrv. Peters, 773 A.2d 183, (Pa. Super. 2001). Furthermore, A determination of the "best interests" encompasses consideration of the physical, emotional, intellectual and spiritual well being of the child. Wiseman v. Wall, 718 A.2d 844, 847 (Pa. Super. 1998). A parent's ability to care for a child must be determined as of the time of the custody hearing, not as of an earlier time. Bresnock v. Bresnock, 346 Pa. Super. 563,500 A.2d 91 (1985). 98-5096 CIVIL We are satisfied that the order issued on November 9, 2001, granting the parties shared legal custody of Alexandra and primary physical custody of Alexandra during the school year to Mr. Powell, is in the best interest of Alexandra. We agree with Dr. Wallin, the custody evaluator, that Mr. Powell provides Alexandra with more structure and discipline. Furthermore, we believe that Mr. Powell can better provide for Alexandra's physical, emotional, intellectual, and spiritual well being. Moreover, by granting custody of Alexandra to Mrs. Powell in the summer, this will foster her loving relationship with her daughter. By resolving this case as we have, we do not mean to suggest that one parent is clearly better than the other. Judge Bayley' s order of equally shared custody was the ideal resolution of this matter. Unfortunately, the age of the child and the distance which separates the parties has forced the selection of one of the parents as primary custodian during the school year. Consideration of all of the testimony in this case, including that of Dr. Wallin, compels us to the conclusion that that parent should be the plaintiff. February 15, 2002 Debra Dennison Cantor, Esquire For the Plaintiff Karl Rominger, Esquire For the Defendant :rlm Kevin A. Hess, J.