Andrews v. Andrews

MONTEMURO, Judge:

This is an appeal from an order vesting sole legal custody of the parties’ minor child in appellee, and reducing appellant’s joint physical custody of the child to a lesser, partial custody schedule.

The parties were married in May of 1980, and in January of 1987 the child, Kelsey, was born. At separation in September of 1989, appellee removed herself and the child from the marital home, and in December of 1989, appellee filed for divorce, including in her complaint a count requesting custody. In March of 1990, after hearings, the Master¹ recommended that the parties share physical and legal custody of the child. A schedule adhering to this recommendation was adopted until hearings on appellee’s exceptions to the Master’s report were held in July and August of 1990. According to this arrangement, appellant received the child on Mondays, and Tuesdays, alternating Wednesdays and weekends with appellee. In October 1990, the order granting appellee primary physical and legal custody was entered, restricting appellant’s periods of custody to three hours Wednesday evening, and alternate weekends and holidays. This appeal followed.

There is no disagreement between the parties that the primary consideration in custody disputes is the best interests of the child.² Rather, the controversy revolves around wherein the child’s best interests lie. In order to make such a determination, “It is clear that a custody court has an obligation to consider all relevant factors that could affect the child’s well being,” DeNillo v. DeNillo, 369 Pa.Super. 363, 367, 535 A.2d 200, 202 (1987) (emphasis added). Our task is to assess the trial court’s performance in light of this paramount concern.

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported by the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel Spriggs v. Carson, 470 Pa. 290, 294-95, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of the record ...” will an appellate court interfere with the trial court’s determination. Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with an order awarding custody. Commonwealth ex rel Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987).

Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988). See also, Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Commonwealth ex rel Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Appellant has presented us, at least ostensibly, with ten claims, many containing subissues. However, they all, by and large convey the same assertion,³ that the trial court, in various respects, abused its discretion by drawing conclusions which were contradicted or unsupported by the evidence, or by misapplication of the law.⁴

The theory central to the trial court’s finding as to the inappropriateness of joint custody is that certain unilateral actions taken by appellant were manipulative and designed to place him in a more advantageous position with regard to the litigation rather than to further his child’s best interests. Specifically, without notifying appellee, and in contradiction to appellee’s wishes, appellant placed Kelsey in a daycare facility during the days in which she was in his custody. Moreover, appellant had the child enrolled in speech therapy upon the advice of a physician other than her treating pediatrician, also against appellee’s wishes, and without her knowledge. Finally, the trial court finds negative connotations in the fact that appellant undertook to toilet train Kelsey, who had been resistant to appellee’s efforts in that direction, and failed to apprise appellee of his success. The trial court concludes that these measures were detrimental to Kelsey, and on that basis dissolved the joint custody arrangement, depriving appellant of any part in decisions regarding Kelsey’s welfare.

We find that the trial court’s major premise is unsupported by the record, and that as to the putative damage wrought upon the child by appellant’s intervention, the trial court misinterpreted the evidence on which this conclusion is based.

The guidelines for determining the propriety of a shared custody arrangement were enunciated by this court in In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982). The criteria established were that 1) both parents must be “fit,” that is, “sane and capable of making rational child rearing decisions, ... willing and able to provide love and care for their children,” 299 Pa.Superior Ct. at 515, 445 A.2d at 1248; 2) both parents must evidence a continuing desire for active involvement in the child’s life; 3) both parents must be recognized by the child as sources of security and love; 4) a minimal degree of cooperation between the parents must be possible. Id. In the trial court’s estimation, this last criterion is seen as the insurmountable obstacle to a shared custody arrangement.⁵

In having Kelsey tested for speech developmental problems and enrolled in speech therapy, the situation which appellant unilaterally moved to correct involved a three and a half year old whose verbal ability, according to the expert who performed the testing, and whose qualifications were not contested by appellee, had progressed no further than that of a child less than two years old. Kelsey was unable even to say her own name, and could articulate no more than two short words in succession.⁶ Those words she could say were difficult to understand. The expert testified that a problem such as the one Kelsey presented could cause difficulties in interaction with other children, resulting in ostracism or ridicule, hence the prescription that therapy be instituted as early as possible. Moreover, the expert testified that a standard recommendation for children in speech therapy is enrollment in some sort of preschool or development center to enable them “to observe the language skills they should be achieving ... and to imitate the language skills in a nonpressure situation.” (N.T. 7-12-90 at 204).

When retested after two months of therapy, Kelsey’s speech showed a marked improvement, one noted by appel-lee⁷ (Id. at 90 at 105), and by Mrs. Pennypacker, the child’s grandmother, and a major contributor to Kelsey’s care. (Id. at 126) Despite appellee’s lack of involvement in the initiation of therapy, both parties agreed to Kelsey’s continuation in the program, primarily because of its evident benefits. Moreover, the trial court directed that following the hearing, Kelsey be retested, and specified both the analyst and the venue of reevaluation. The conclusions drawn by this expert mirrored exactly those measures undertaken by appellant, and recommended continuation of the program already begun. (See, Speech-Language Evaluation Report of 7-27-90 performed by Jane F. Meyers, M.S., at 4.)⁸ It is difficult for this court to accept, in view of this improvement and of appellee’s acquiescence in the treatment,⁹ that appellant’s actions can be viewed only as measures designed to improve his position in litigation, or as a means of avenging himself on appellee. The trial court acknowledged appellant’s testimony that he failed to inform appellee of Kelsey’s enrollment in speech therapy because he believed appellee would be angry if she found out and, in fact, she was angry when he told her. Despite this explanation, the court nevertheless concluded that appellant’s behavior was somehow motivated solely out of his hostility and bitterness toward appellee.

The daycare is similar in its implications. At the suggestion of Dr. Hanna, the referring physician for speech therapy, appellant enrolled Kelsey in a daycare center two to three days a week to assist with the speech problem and to provide the child social interaction with and opportunities to observe children her own age. Up until this point, Kelsey spent most of her time in the company of adults. Although appellant initially failed to inform appel-lee that Kelsey was attending the daycare center because appellee was opposed to the idea, appellee agreed to the continuation of Kelsey’s attendance at the preschool, given the rapid improvement in Kelsey’s speech and the speech pathologist’s recommendation of Kelsey’s continued enrollment in the program. The daycare placement, like the speech therapy, was regarded by appellee as having a positive result (N.T. 7-12-90 at 67), and one which she would possibly have agreed to had she been consulted {Id. at 63). Moreover, appellee stated that she intended to continue Kelsey’s enrollment under the then present schedule, that is, two or three half-days per week. {Id. at 70)

The final outrage, as the trial court sees it, is appellant’s success in toilet training the child and his failure to apprise appellee of the child’s progress. It is to this dereliction that the court attributes the confusion the child was said by the examining psychologist to evidence. We would first note that despite the confusion, whether or not it stems from the parties’ differing ability to accomplish anything in this area, the court's expert was clear that Kelsey was a normal, basically healthy child (N.T. 8-23-90 at 12), an assessment shared by appellee (N.T. 7-12-90 at 54), and the child’s grandmother (Id. at 114, 118). The confusion, which the trial court implies was due to appellant’s subversion of appellee’s efforts, was attributed by the expert to the very different styles evidenced by the parties in managing the child. However, there was testimony to the effect that the same result could occur in intact families with the same personality differences. (N.T. 8-23-90 at 52)¹¹ Despite these differences, and the animus demonstrated by the parties toward each other, shared legal custody was recommended by the court’s chosen expert in this case because both parties were seen as rational and intelligent (Id. at 21), and the continuation of shared physical custody was seen as important for continuity and consistency. (Id. at 73)¹² Nowhere in the record was there evidence that appellant was systematically attempting to “destroy the Mother/Child relationship by his unilateral acts.” (T.C.O. at 25)

Given the advancements made by Kelsey due to appellant’s involvement of professional help, we must disagree with the trial court that appellant’s actions regarding speech therapy, daycare and toilet training derived from appellant’s anger and hostility and were merely “manipulation[s] of a child through a pattern of secrets,” (T.C.O. at 21), and that they are causing harm to the child. On the contrary, these activities were instituted in view of the child’s best interests.¹³ The court’s conclusions both as to appellant’s motives, and the resultant deleterious effect upon the child are simply preposterous and unsupported by the record.¹⁴

Further, we find that the trial court erred in attributing the lack of cooperation between the parties to appellant alone. Appellant initially sought appellee’s agreement to enroll Kelsey in the preschool, but appellee, after participating in the initial preplacement interview, (N.T. 7-12-90 at 88) absolutely refused to give her approval. Appellant therefore kept Kelsey’s involvement in these beneficial activities a secret from appellee because appellee would not have allowed them to take place. From our reading of the record, appellee, rather than appellant, was less than cooperative in promoting Kelsey’s best interests. The child undoubtedly needed professional help in an area which appellee herself recognized as requiring medical intervention (Id. at 104), yet appellee remained adamant in her position that Kelsey had no problem necessitating such attention. Appellee only acquiesced in Kelsey’s continued enrollment in speech therapy and daycare after someone else had taken the initiative in seeking help, and the help had proven beneficial. We do not believe that appellant should be “punished” for his concern over the child’s welfare by depriving him of joint custody of Kelsey, particularly where his activities were of demonstrable and acknowledged benefit.¹⁵

In this instance, the trial court would have been better advised to continue the schedule to which the child had become, in appellee’s own words, very well adjusted (Id. at 54) and which the court appointed experts recommended be continued, and to order the parties to share the decision-making process. That they are capable of such cooperation is clear from the occurrences subsequent to appellant’s actions.

Finally, appellant complains that the trial court erred in excluding all evidence concerning appellee’s paramour, one Luke Whitman, who, according to the testimony of both appellee and her mother spends nearly every evening between approximately 6 p.m. and 11 p.m. at appellee’s residence, and accompanies appellee and Kelsey on family outings. (Id. at 77, 122) The child also calls this person “Luke-daddy,” although appellee testified that she did not tell Kelsey to use this form of address.¹⁶ In Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986), we stated that where inquiry is being made into the child’s best interests for purposes of custody determinations, “It is in the child’s best interest to preserve and nurture those relationships which are meaningful, while avoiding situations which might prove harmful.” Id., 351 Pa.Superior Ct. at 460, 506 A.2d 439. As this individual clearly spends a significant amount of time in Kelsey’s presence, his effect upon her is a factor in determining the award of custody herein. As we have already stated, the court is obligated to consider “all relevant factors” DeNillo v. DeNillo, supra, in making its decision. Clearly, the character and habits of a man with whom Kelsey has almost daily contact in her own home bear upon whether proximity to this person is in the child’s best interests. The trial court, in finding such information irrelevant, and a psychological evaluation unnecessary erred.

For the foregoing reasons, we reverse the custody order and remand for proceedings consistent with this memorandum.

Reversed and remanded. Jurisdiction relinquished.

1 . The trial court’s Opinion states that the Master’s hearing was held "pursuant to Berks County Rules of Court." Pa.R.C.P. 1920.-51(a)(2)(iii), consistent with the Divorce Code, 23 Pa.C.S.A. § 3321, prohibits the appointment of a Master to hear testimony on issues of custody or paternity. We merely note the problem, as neither party has objected to this method of proceeding.

2 . Despite the parties’ agreement on this point, the Dissent would subordinate the child’s best interests to “fundamental rights and fair play." (Dissenting Opinion at 298). However, the law clearly places the child’s best interests above all other considerations, see, Commonwealth ex rel Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), including what the Dissent terms without definition, "superior rights.” The only superior rights recognized by current jurisprudence are those of the child.

3 . The one exception, which challenges the court’s exclusion of evidence concerning appellee’s paramour, will be dealt with separately.

4 . We note with disapproval that appellant’s Statement of Questions Presented, which covers three full pages of his brief, is violative of Pa.R.App.P. 2116(a), which provides that the Statement "should not ordinarily exceed 15 lines” and “must never exceed one page." Moreover, in further violation, the material contained in the Statement is verbose, repetitive, and argumentative, includes dates and other particulars specifically prohibited by the Rule, and fails to include the answer of the trial court to each of appellant’s claims, which are, rather than questions, declaratory sentences.

5 . The trial court, although accepting the expert’s assessment of both parties as lacking psychiatric pathology, does insist upon the description of appellant as a rigid and angry personality as the source of all difficulties here. It goes further, and suggests that appellant alone is in need of psychological counseling. These findings have no eviden-tiary support in the record.

6 . The trial court notes in one instance, speaking of the testimony of the psychologist appointed by the court to evaluate the parties, that there was testimony concerning Kelsey’s inability “to articulate what her emotional home base was." (T.C.O. at 19) It was implied that this inability was the result of confusion stemming from her parent’s animosity. However, the record reveals that the expert chose not to force a choice due to Kelsey’s age, and her inability to articulate.

In another instance the trial court states that appellant’s anger toward appellee led to his enrollment of the child in speech therapy, and that he tacitly encouraged her to hide her activities from her mother, stating that Kelsey "is bright enough to have known that she was not to discuss Dr. Hanna [the referring physician] or the Reading Rehabilitation Hospital [where the therapy sessions occurred] with her mother." (T.C.O. at 25) Such a statement is ludicrous in view of Kelsey’s limited verbal abilities.

7 . It is noted by the trial court that appellee never obtained a second opinion of Kelsey’s language development from a speech therapist, but rather discussed the matter with a member of the Albright College Speech Therapy Department. (T.C.O. at 8) In fact appellee mailed a copy of the evaluation obtained by appellant not to a speech pathologist, but, at the suggestion of the pediatrician, to a person identified as the accounting director of the psychological services center at the college. (N.T. 7-12-90 at 98) It is to this pediatrician, who admitted that he had not the expertise even to interpret the report of the speech therapist, that the Dissent points as an adequate assessor of Kelsey’s condition.

8 . Without providing authority for its conclusions either from the record or elsewhere, the Dissent has decided that proceeding with speech therapy for a child of three is subject to serious question, as is such therapy without the involvement of both parents. Nothing in the reports of either expert, or indeed in the testimony of any witness is supportive of this view.

9 . Even the Dissent notes that in acquiescing to the measures taken with Kelsey, appellee, "placed the child’s best interest above her personal feelings.” (Dissenting Opinion at 299) This seems to indicate not only appellee’s obstructiveness in the face of any suggestion made by appellant, but also that the results achieved were not, as the Dissent would have it, merely conjectural.

10 . The trial court, in support of its position that day care is detrimental to the child’s best interests, points to the testimony of Kelsey’s treating pediatrician, who stated that

‘‘a ten hour day at the day care center for a child of Kelsey’s years was pretty ambitious. He noted that public school kindergarten is usually a morning or an afternoon session for children who are 5 or 6 years old and Kelsey has not yet reached 4 years old." (T.C.O. at 4)

Leaving aside the accuracy of the pronouncement as to public schools, Kelsey’s schedule at the daycare center consists of half-days on Mondays, Tuesdays, and alternate Wednesdays, a regime entirely consistent with the pediatrician’s views despite the Dissent’s attempt to demonstrate the opposite.

11 . The Dissent finds this diversity unequivocally negative. However, mere diversity of personality type by itself, is not and has never been the basis on which to determine custody.

12 . The question of appellant’s right of first refusal, that is his ability to keep Kelsey when appellee is unavailable, was, as the Dissent notes, found by the expert to have an undesirable effect on Kelsey’s sense of permanency. We see no reason to differ.

13 . The Dissent notes that even assuming the benefit to the child accruing from appellant’s actions, "this does not mean this child’s future is going to be a happy and productive one." (Dissenting Opinion at 358). Unfortunately no court, nor any other human agency, can or should attempt to stand as guarantor of what is to come. However, the attempt can and must be made, through case disposition, to assure that those things are done which will provide a child with the best possible opportunities to thrive and develop normally, that is, those things which are in the child’s best interests.

14 . In its opinion, the court states, "The unilateral actions of the Defendant ... evidence his inability to act in a cooperating manner about Kelsey.” (T.C.O. at 21) If we were to accept this conclusion, then any action on the part of appellant which appellee does not approve, regardless of how necessary or beneficial to Kelsey, would be interpreted as uncooperative by the court and therefore warrant revocation of his joint custody rights. The absurdity of such a result is obvious.

15 . The result in this case is characterized by the Dissent as "inform[ing] the domestic relations legal community that to win a shared custody award, one need only unilaterally and secretively engage in practices and programs which may appear to have some benefit to the child.” (Dissenting Opinion at 300) This pronouncement not only distorts the factual realities involved here, but ignores the reasoning behind the conclusion. Disagreement with the outcome in a given instance should engender a reasoned, logical response. Nothing else is necessary or productive.

16 . The trial court's statement to the effect that appellee indicated this manner of address was strongly discouraged is not supported by the record. (See, N.T. 7-12-90 at 77, 123)