Andrews v. Andrews

• Decision Date: 31 January 1992
• Citation: 601 A.2d 352,411 Pa.Super. 286
• Parties: Catherine M. ANDREWS v. Perry C. ANDREWS, III, Appellant.
• Court: Pennsylvania Superior Court

Page 352

601 A.2d 352

411 Pa.Super. 286

Catherine M. ANDREWS v. Perry C. ANDREWS, III, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 1, 1991.

Decided Nov. 26, 1991.

Reargument Denied Jan. 31, 1992.

Kathleen Dautrich, Reading, for appellant.

Sandra Edwards Gray, Lancaster, for appellee.

Before MONTEMURO, TAMILIA and BROSKY, JJ.

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 Master ¹ 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," Id., 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 appellee ^{7 7} (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 situation ¹⁰ 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 appellee 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...