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HomeMy WebLinkAbout2006-4635 Civil RYAN BOPP, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KATRINA BOPP, DEFENDANT 06-4635 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., December 29,2006:-- Ryan Bopp, age 31, and Katrina Bopp, age 25, met in Wyoming where she lived. They married on September 14, 2001, and moved to Pennsylvania where his family lives. They have two sons, Beecher Bopp, age 4, born May 4,2002, and Brogan Bopp, age 2, born October 11, 2004. In May 2006, the mother took the children to her mother's home in Salem, Missouri. On August 11, 2006, the father filed a petition seeking primary physical custody of Beecher and Brogan. The mother seeks primary physical custody and authorization for the children to live with her in Missouri. A hearing was conducted on December 11, 2006. The father moved from the marital residence and now lives with Heather Rexroth in a two bedroom apartment in Boiling Springs, Cumberland County. He testified that he became involved with Rexroth about five months ago and that they started living together about four months ago. She is single and has no children. She was a good friend of both the mother and father before their separation. The father was recently laid off as a forklift operator at Borders Distribution where he worked nights, Sunday 06-4635 CIVIL TERM through Wednesday, for the last three months. He is drawing unemployment and expects to be recalled. He has had three employers in the last year. The mother worked outside of the home before Beecher was born in May, 2002. She started working again in September, 2003. She stopped in the latter stages of her pregnancy before Brogan was born in October, 2004. The father and mother agreed that she should stay at home to care for the children. The mother testified that the father was very involved with Beecher but lost interest in his children after Brogan was born. She separated in May, 2006, after he committed an act of physical abuse against her for which criminal charges were filed by the police.1 The mother had no money, no car and nowhere to go except her mother's home in Missouri. She was picked up by her aunt and uncle, who drove from Missouri. Just before she left, Heather Rexroth gave her $20. The mother did not go to a preliminary hearing on the criminal charges against the father because she was then in Missouri, and she was still hoping that the father would seek counseling that would lead to reconciliation. This resulted in the charges being dismissed. The father did not seek counseling. 2 The mother's thoughts of reconciliation ended when the father sent her threatening email messages and posted a picture of them having sexual relations on MSN. 1 The father came home at 5:00 am. and attacked the mother. She was bruised and some of her hair was pulled out. 2The paternal grandmother, who spoke many times by phone with the mother in Missouri, sent an email to her stating that her son was not being fair to her and the boys by not seeking treatment. -2- 06-4635 CIVIL TERM The father has instituted a divorce action. By agreement, he had the children for ten days in October. He has had them again since November 25, and they are to go back with the mother at the end of this year. The father's parents live in Lykens, Dauphin County, and other members of his family, whom the boys know, live within about a two hour drive of Boiling Springs. The grandparents are close to Beecher and Brogan. The father complains that the mother is a big drinker, lazy and a lousy housekeeper. The father is currently in the Cumberland County DUI ARD program for driving under the influence in June, 2006. The maternal grandmother, Crystal Powell, lives about fifteen minutes from Salem, Missouri. Before the mother went to Missouri, the maternal grandmother visited her in Pennsylvania three times. The parents and children visited the maternal grandmother in Missouri several times. When the mother and children went to Missouri in May 2006, they stayed in the maternal grandmother's home for a few weeks until they moved to the four bedroom home of Phil and Ruth Krueger, and their two daughters ages 15 and 14, in Salem. The Kruegers have been family friends for about twenty years. Although they are not related to the mother, they have been like an aunt and uncle to her. The move into the Krueger home allowed the mother to seek full-time employment in Salem, which she obtained at an antique mall, Mondays through Fridays, 8:00 am. to 4:00 p.m.3 Beecher and Brogan are in their own bedroom. 3 The mother is also working on her GED. -3- 06-4635 CIVIL TERM Beecher takes a bus to and from a Head Start program Mondays through Thursdays, 8:00 a.m. to 3:00 p.m.4 Ruth Krueger babysits for Brogan without charge. The mother pays for food for her and the children and helps with cooking and cleaning. She does not pay rent. She has just acquired a car and she hopes to be able to move into her own apartment in a couple of months. Ruth Krueger testified that the mother can stay in her home as long as necessary. The mother and the children now see the maternal grandmother every weekend. The ultimate determination in a custody case is what is in the best interest of the children. Ferdinand v. Ferdinand, 763 A.2d 820 (Pa. Super. 2000). When a parent seeks to have children live out of Pennsylvania, an analysis must be made of the factors set forth in Gruber v. Gruber, 400 Pa. Super. 174 (1990), which are: 1. the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; 2. the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; 3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. In Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), the Superior Court of Pennsylvania stated that it has consistently held that Gruber "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." As to the first Gruber factor, the Superior Court stated in 4 Beecher will start kindergarten in the fall of 2007. -4- 06-4635 CIVIL TERM Anderson v. McVay, 743 A.2d 472 (Pa. Super. 1999): A court need not consider only economic benefits when determining whether relocation substantially improves the quality of life of the parent. . .. Rather, "when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside." This is because "the best interests of the child are more closely aligned with the interest and quality of life of the custodial parent. . . ." [T]here is no need. . . to show an independent benefit, apart from that of [the moving party], flowing to the children because of the relocation. See Zalenko v. White, 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) In Ferdinand v. Ferdinand, supra, the Superior Court reversed an order of the trial court denying a mother's petition to relocate where non-economic improvements in the mother's quality of life and happiness would inure to the benefit of the children. See also, Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002). In the case sub judice, the mother going to Missouri was not the result of a momentary whim. It was the direct result of an act of physical abuse against her by the father whereby she felt compelled to separate. She had no money, no place to stay, and no realistic means of being able to adequately support herself and care for the children in this area. Even then she was hoping for a reconciliation, it was the father's subsequent abhorrent conduct which removed that possibility. The move to Missouri already has substantially improved the quality of the mother's life as a custodial parent. She has a safe and secure place for her and the children to live, she has obtained full- time employment which has enabled her to purchase a car, and she has the close support of her mother and her surrogate aunt and uncle. She would have no such -5- 06-4635 CIVIL TERM support in Pennsylvania where even her friend, Heather Rexroth, is now living with the father. Clearly, the integrity of the mother's motives in going to Missouri and then deciding to stay are sound. Her stable situation in Missouri, brought about by the support system she has there, has correspondingly improved the quality of life for Beecher and Brogan. The mother has always been the primary caretaker of Beecher and Brogan. Although the father is concerned about maintaining his relationship with his sons, it is in their best interests to live with the mother who is better able to care for them. Even through the drive to Salem, which is in central Missouri, is approximately fourteen hours, we can fashion a realistic custody order which will adequately foster an ongoing relationship between Beecher and Brogan with their father. ORDER OF COURT AND NOW, this entered: (1) Ryan Bopp and Katrina Bopp shall have shared legal custody of Beecher Bopp, born May 4, 2002 and Brogan Bopp, born October 11, 2004. (2) The mother shall have primary physical custody of Beecher and Brogan, and day of December, 2006, the following order is the children may live with her in Missouri. (3) The father shall have periods of temporary physical custody of both Beecher and Brogan as follows: (a) Until Beecher starts kindergarten: -6- 06-4635 CIVIL TERM (i) March and April 2007. (ii) July 2007 through two weeks before Beecher starts ki ndergarten. (b) After Beecher starts kindergarten: (i) From the first day Beecher and later Brogan are off school for each Christmas vacation period until January 1. (ii) Each summer, from one week after school ends until three weeks before school begins. (c) If the father visits Salem, Missouri, for such periods as any child is not in school. (d) At such other times as the parents may agree. (4) The parents shall set the time and location for transfers which, unless otherwise agreed, shall occur in Columbus, Ohio, which is about halfway between Salem and Boiling Springs. By the Court, Edgar B. Bayley, J. Leslie A. Tomeo, Esquire F or Ryan Bopp Jessica Holst, Esquire For Katrina Bopp -7- 06-4635 CIVIL TERM :sal -8- RYAN BOPP, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KATRINA BOPP, DEFENDANT 06-4635 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this day of December, 2006, the following order is entered: (1) Ryan Bopp and Katrina Bopp shall have shared legal custody of Beecher Bopp, born May 4, 2002 and Brogan Bopp, born October 11, 2004. (2) The mother shall have primary physical custody of Beecher and Brogan, and the children may live with her in Missouri. (3) The father shall have periods of temporary physical custody of both Beecher and Brogan as follows: (a) Until Beecher starts kindergarten: (i) March and April 2007. (ii) July 2007 through two weeks before Beecher starts ki ndergarten. (b) After Beecher starts kindergarten: (i) From the first day Beecher and later Brogan are off school for each Christmas vacation period until January 1. 06-4635 CIVIL TERM (ii) Each summer, from one week after school ends until three weeks before school begins. (c) If the father visits Salem, Missouri, for such periods as any child is not in school. (d) At such other times as the parents may agree. (4) The parents shall set the time and location for transfers which, unless otherwise agreed, shall occur in Columbus, Ohio, which is about halfway between Salem and Boiling Springs. By the Court, Edgar B. Bayley, J. Leslie A. Tomeo, Esquire F or Ryan Bopp Jessica Holst, Esquire For Katrina Bopp :sal -2-