E.J.C. v. I.M.C., 040816 PASUP, 1361 WDA 2015

Docket Nº:1361 WDA 2015
Opinion Judge:BENDER, P.J.E.
Party Name:E.J.C., Appellee v. I.M.C. Appellant
Judge Panel:BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
Case Date:April 08, 2016
Court:Superior Court of Pennsylvania
 
FREE EXCERPT

E.J.C., Appellee

v.

I.M.C. Appellant

No. 1361 WDA 2015

Superior Court of Pennsylvania

April 8, 2016

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered August 14, 2015 In the Court of Common Pleas of Clearfield County Civil Division at No(s): 2011-1128-CD

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM

BENDER, P.J.E.

I.M.C. ("Mother"), appeals pro se1 from the August 14, 2015 order denying her petition for modification of the custody order awarding E.J.C. ("Father") primary physical custody of their son, N.M.C. ("Child"), born in August of 2006. After careful review, we affirm.

The parties to this action, Father and Mother, were married in October of 1993 and are the parents of Child. Father and Mother separated in May of 2011, at which time Father continued to reside in the marital home in

Houtzdale, PA, and Mother relocated to Ligonier, PA with her paramour, Ken Parker ("Mr. Parker"). Findings of Facts, 5/3/12, at 1-2. Father initiated divorce proceedings in September of 2011 and requested primary physical custody of Child. Complaint in Divorce, 7/13/11, at 1-4. After a custody hearing was held in this matter in March of 2012, the trial court issued an order ("Custody Order") and opinion dated April 27, 2012, awarding Father primary physical custody subject to Mother's periods of partial custody.2 The Custody Order also granted Father and Mother shared legal custody. The following relevant findings of fact were subsequently issued by the trial court:

6. [Father] is currently employed as a dispatcher for Christoff-Mitchell Petroleum [("CMP Energy")] and also works part-time as his schedule permits as an [emergency medical technician ("EMT")] for several ambulance services and Penn State University.

7. [Father's] work hours are from 7:00 a.m. to approximately 4:30 p.m., with a slightly shorter shift in the summer and a longer one in the winter. There are also some Saturday work days, apparently one or two per month. His EMT work is entirely discretionary with [Father].

9.[Child] is a special needs child, suffering from high functioning autism.

10. For the first three years of [Child's] life, [M]other was the primary care giver in view of [F]ather's employment, although during the last year and one/half before separation [M]other was occasionally gone out of town for multiple overnights relating to her work.

11. Mother is currently employed by Laurel Mountain Leasing, a company owned by [Mr. Parker, ] along with other members of his family. She claims an income of $500.00 per month. …

12. When [Mother] was working out of the area, [Father] with the aid of babysitters performed parental duties.

13. Both [Mother] and [Father] have extended family in the Houtzdale/Clearfield County area, but no family in the Ligonier area.

14. Both before the separation of the parties and since, Bertha Reams [("Ms. Reams")] has acted as babysitter for [Child]. She is [Mother's] sister and lives approximately 6 ½ miles away from [F]ather. She provides extensive services to [F]ather during his work times when [F]ather has custody of [Child].

15. [Child] has attended the New Creations Pre-school program sponsored by an area Lutheran Church since February of 2010, and is doing well in that program. He has made friends there and has a positive relationship with staff.

16.[Child] receives special services through the Central Intermediate Unit as well as speech therapy, with the services being made available at New Creation.

19.Father has no intention of relocating, as he grew up and has worked his entire life in [the] Houtzdale area.

20. While each parent indicates that they are in favor of liberal contact by [Child] with the other parent, each has been difficult on that issue at some times in the past.

21. [Mother] is currently on probation following a guilty plea to various counts of theft, relating to her embezzlement from an area fire company where she was secretary and her husband president. At her sentencing hearing, counsel for [Mother] inaccurately represented to the court that [F]ather was "out of the picture" and she was the sole custodian of her son. Apparently[, ] this was done so that she could avoid a jail sentence.

22. Each parent is capable of providing a positive and safe atmosphere for [Child].

23.[Child] is comfortable in his current home where he grew up, and has positive relationships with neighbors and family members from both his father[']s and mother['] families. Father makes sure that [Child] maintains contact with [M]other's family even though she is out of the area.

26. [Father] is the more stable of the two parents, in that [Mother] is currently in a relationship with her employer who remains married to another and has children despite his relationship with [Mother].

29. At one time, when [Mother] was frustrated by [Father's] refusal to let [Child] go with her, she solicited other family members in an attempt to surreptitiously remove [Child] from his father's custody and take him away to Westmoreland County.

30. [Father] paid approximately $10, 000.00 on behalf of [Mother] relative to restitution for her criminal activities. Mother at that time made comments indicating that under no circumstances would she go to jail, even if it involved killing herself and her child in a car wreck.

31. Neither parent suffers from any serious physical or mental abnormalities, nor any drug or alcohol problems.

32.One significant point of contention between the parties is the role of Mr. Parker, [Mother's] paramour. Contrary to [F]ather's wishes, [M]other frequently brings him to custody exchanges at a state police barracks in Ebensburg, Pennsylvania, and also has brought him into the former marital residence now occupied by [Father] on various occasions.

33. As a reaction to Mr. Parker's presence, [Father] has posted crude and anti-semetic [sic] references to Mr. Parker in letters on his refrigerator in his home, anticipating that Mr. Parker would see them when he entered.

36. Despite the distances involved, [M]other has been involved in many of [Child's] pre-school activities, teacher meetings, and the like.

37. [Child] apparently attends a program in Ligonier, but [F]ather has not been involved, as he received virtually no notice of some recent events.

38. While by some measurements the school system in Ligonier may be superior to that of the Moshannon Valley, the [c]ourt is convinced that either school, with appropriate supportive services, can provide a good education for [Child].

39. [Mother and Father] have very poor communications, and each blames the other for starting arguments. The police have intervened on occasion, and custody exchanges do take place at a police station.

46. On at least some occasions[, F]ather has been critical of [M]other, which seems to be upsetting to [Child].

Findings of Fact, 5/3/12, at 1-5.

On May 24, 2012, Mother filed a notice of appeal from the Custody Order, contesting the award of primary custody to Father. After careful review of the record, we issued an order and opinion dated December 24, 2012, affirming the trial court's decision. On May 13, 2014, Mother filed a petition to modify custody listing the following grounds for relief:

a. [Father] has refused to cooperate with co-parenting [Child];

b. [Father] has refused to promote the relationship of [Child] and [Mother];

c. [Mother's] circumstances have stabilized to the extent that it is now conducive to her having primary custody of [Child];

d. [Mother] is more suited to dealing with the special needs of [Child];

e. [Mother's] current employment allows flexibility of scheduling rendering her more able than [Father] to address parenting duties.

Mother's Petition to Modify Custody, 5/13/14, at 1-2. In response to Mother's petition, the trial court scheduled another custody hearing, which was held on April 17, 2015. Testimony was heard from Mother, Father, Mr. Parker, and Sherri Campbell ("Ms. Campbell"), the principal at Child's present school in Moshannon Valley School District, which we summarize in relevant part herein.

Father testified that he remains employed at CMP Energy, and his regular work hours are Monday through Friday, from 8:15 a.m. to 5:00 p.m., and every third Saturday. N.T. Custody, 4/17/15, at 116-117. Father further indicated...

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