Billhime v. Billhime

• Citation: 869 A.2d 1031
• Parties: Lisa BILLHIME, Appellant, v. Darin BILLHIME, Appellee.
• Decision Date: 25 February 2005
• Court: Superior Court of Pennsylvania

869 A.2d 1031

Lisa BILLHIME, Appellant, v. Darin BILLHIME, Appellee.

Superior Court of Pennsylvania.

Argued January 12, 2005.

Filed February 25, 2005.

Susan M. Hill, Bloomsburg, for appellant.

Thomas E. Leipold, Bloomsburg, for appellee.

BEFORE: BENDER, GANTMAN, and JOHNSON, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Lisa Billhime ("Mother"), asks us to determine whether the Montour County Court of Common Pleas erred when the court denied her petition to relocate, with the two minor children of her marriage to Darin Billhime ("Father"), from Pennsylvania to Florida. Upon a thorough review of the record and the applicable law, we hold the trial court's decision is unreasonable with respect to the factors involved in a proper Gruber¹ analysis, where the evidence of record supports a finding that the non-economic factors, such as returning to her network of family and friends, will substantially improve Mother's quality of life, and the many benefits will flow to the children. Accordingly, we reverse the trial court's decision to deny Mother's relocation request, and remand for proceedings necessary to construct a revised visitation schedule to accommodate Mother's relocation and Father's partial custody.

¶ 2 The relevant facts and procedural history of this appeal are as follows. The parties were married in California on December 2, 1994. Mother is a part-time actress and Father is a radiology technician. In late 1996, the parties moved to Orlando, Florida, where Mother's family is located. The parties' twin boys, A.B. and E.B., were born on December 30, 1996. Mother pursued work in the Orlando-area entertainment industry, which generally involved one or two days at a time doing commercials, voice-overs, and small roles. In 2000, she began working full-time as a bookkeeper and salesperson. Father's pattern of employment in Florida was unsteady. The children began attending a Christian pre-school in Orlando.

¶ 3 In January 2001, the family relocated to rural Pennsylvania. They purchased a farm which had been owned and operated by Father's family for five generations. Father spent the first two to three months renovating the family home and farming. He then took a job as a part-time radiology technician, but was laid off after about nine months. He was fired from his next job as an X-ray technician after five or six months. Father then spent the next nine months farming, which proved financially unviable. He now commutes more than one hour each way to a full-time job as a radiology technician in Harrisburg. He is on-call one weekend each month, and occasionally works overtime. This position provides medical benefits for the family.

¶ 4 Mother continued doing sales work for her Orlando employer out of her Pennsylvania home for a period of time. Her income during the year prior to moving was about $40,000.00, derived mainly from non-acting work. Her income during the first year in Pennsylvania was about $4000.00. Mother has continued to pursue her acting career, which often involves extensive commutes to New York, Philadelphia and Baltimore for auditions, with no guarantee of employment. During 2003-04, she acted for ten to twelve successive weekends in Johnstown, Pa. Mother has not sought full-time work outside of acting while in Pennsylvania. The children had attended a Christian pre-school, but are now home-schooled exclusively by Mother.

¶ 5 The parties have a history of separating and reconciling, which involves Mother's allegations of physical abuse by Father.² During a six to seven month separation in 1998-99, Father moved to New Mexico to live and work with his mother. He returned to Florida, but the parties separated for another period of time in October 2003. Their final separation occurred on February 14, 2004. Mother continued to live with the children in the marital home on the farm. Father has lived across the street with his father and stepmother.

¶ 6 Mother filed a complaint in divorce on March 25, 2004, seeking primary physical custody of the minor twin boys. On May 26, 2004, the parties and their respective counsel attended a court-ordered conference with a Special Master. On June 17, 2004, the trial court entered an interim order, incorporating by reference the Master's recommendations, which included the following: (1) parties to share legal custody of the minor children; (2) primary physical custody to Mother; (3) partial physical custody to Father every Tuesday and Thursday evening and alternating weekends; (4) parties to comply with designated holiday and vacation schedules; (5) Mother may take the minor children to visit her family in Florida up to three times per calendar year, for no more than twenty-one days per trip; and (6) parties are reciprocal child care providers of choice if either is unable to care for children during their respective custodial time. (See Report to the Court of Special Master, filed June 7, 2004, at 4-8.)

¶ 7 On July 7, 2004, Mother filed an emergency petition for custody requesting permission to relocate with the minor children to Florida. At the court-ordered hearing on July 28, 2004, Mother and Father each testified. Mother revealed she wishes to return to Orlando, Florida to benefit from the love, support, and encouragement of her extensive family, many friends from childhood, and her church community, now that she and Father are separated. (Id. at 12). Moreover, the boys would be returning to a familiar place, where they have maintained close relationships with family and friends, and still remember the school they would enroll in if they moved back. (Id. at 38). This school has offered places for the boys and a scholarship covering ninety percent of tuition. (Id. at 27-28, 66-68; Mother's Exhibit 1).

¶ 8 Mother stated she believes the move will enable her to provide more financial security for herself and the children. Mother indicated she had a job offer in the customer service department of a car dealership at $11 per hour, with an opportunity to increase her salary with bonuses or promotions, stable health benefits for the family, and a flexible schedule to allow for work in the entertainment industry. (Id. at 20-22; Mother's Exhibit 2). She has notified her agent and other contacts in Orlando of her intent to move back, and has received several letters indicating she could quickly reestablish herself in the Orlando-area entertainment industry. (Id. at 39-40; Mother's Exhibit 3). Mother claimed she has not found a comparable work schedule in rural Pennsylvania, where it is difficult to be available on short notice for auditions which involve long commutes, travel expenses, and no guarantee of salaried work. (Id. at 14-19). By comparison, Orlando can offer her more opportunities to do salaried acting work close to home. (Id. at 14). Thus, Mother maintained that returning to Orlando would substantially enhance her economic and personal situation as a single mother, and thereby benefit the children.

¶ 9 Mother contended the family moved to Pennsylvania when Father's father offered to sell them the family farm, after foreclosure on their Florida home. (Id. at 9). Mother agreed to relocate only on the condition that she and the children could travel frequently to Florida to be with her family. (Id. at 9-10). Mother claimed the children have had a minimal relationship with their paternal grandfather and his wife, even though they live across the street. Father's mother has not been in contact with the family for the past four years. (Id. at 7). Father's sister lives in Chicago, and there is no other extended family in the area. Mother alleged Father has told her he would consider moving to California, and would let Mother move there as well. (Id. at 32-33, 57-58). Mother stated she would not oppose Father moving back to Florida. (Id. at 38).

¶ 10 Mother proposed an alternative schedule for partial custody whereby Father would have the boys during most of summer vacation, from early May to early August, two weeks at the Christmas break, and one week during spring vacation. Mother hoped Father would make frequent visits to see the boys in Florida, and stated that her aunt and uncle offered to have Father and the boys stay with them at no cost. (Id. at 37).

¶ 11 Father testified he is concerned the relocation will have a detrimental effect on the close relationship he shares with the children. He stated that the purpose of moving to Pennsylvania was to enable the family to be closer with each other by being together full-time on the farm. (Id. at 87). Though he has spent considerable time with the children, Father conceded his current full-time job prevents him from being with them as much as when he farmed. (Id. at 108). Father indicated there are fine Christian schools for the boys to attend in their area, if Mother chose to stop home-schooling. (Id. at 73-74). Father acknowledged Mother's close relationship with her extended family in Florida, but felt the current custody arrangement allowed her to spend a significant amount of time visiting them. He denied knowing about the proposal from Mother's aunt and uncle to stay with them while visiting the children in Florida. Furthermore, he has no personal relationship with them, and said he would feel uncomfortable as a guest in their home. (Id. at 78-79).

¶ 12 The trial court entered its order on August 3, 2004, denying Mother's emergency petition to relocate. Mother filed this timely appeal.

¶ 13 Mother raises the following issue on appeal:

DID THE TRIAL COURT FAIL TO PROPERLY APPLY THE GRUBER TEST IN DENYING APPELLANT'S REQUEST TO RELOCATE FROM PENNSYLVANIA TO FLORIDA WITH THE MINOR CHILDREN?

(Mother's Brief at 3).

¶ 14 Our scope of review in child custody matters is broad. Goldfarb v. Goldfarb, 861 A.2d 340, 342 (Pa.Super.2004).

The appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a

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