Clapper v. Clapper

• Decision Date: 11 July 1990
• Citation: 396 Pa.Super. 49,578 A.2d 17
• Parties: Jon C. CLAPPER, Appellee, v. Linda R. CLAPPER, Appellant.
• Court: Pennsylvania Superior Court

Page 17

578 A.2d 17

396 Pa.Super. 49

Jon C. CLAPPER, Appellee, v. Linda R. CLAPPER, Appellant.

Superior Court of Pennsylvania.

Argued May 2, 1990.

Decided July 11, 1990.

Joseph B. Policicchio, Somerset, for appellant.

Vincent J. Barbera, Somerset, for appellee.

Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.

POPOVICH, Judge:

This is an appeal from a final order entered in the Court of Common Pleas of Somerset County denying appellant Linda Clapper's petition to allow her to relocate to Connecticut with the parties' two children. We affirm the trial court's order.

Linda and Jon Clapper were married on April 5, 1975. On November 10, 1980, the couple had a daughter, Jessica Clapper. On December 27, 1983, their son Jon Clapper was born. Since the parties' separation in May, 1987, the Clappers have shared legal and physical custody of the children. Mrs. Clapper has maintained primary physical custody. The record clearly indicates that both parents play active roles in the children's lives. Additionally, the trial court concluded that both parents are fit. See Trial Court opinion, at 4, 6, 7. A review of the record also reveals that the children love Jon and Linda equally and seem comfortable with the present custody arrangement. ¹ See N.T., August 2, 1989, at 31-38.

In June, 1989, Mrs. Clapper informed Mr. Clapper that she intended to move to Connecticut with the children. ² Mr. Clapper refused to consent to the proposed relocation. On July 3, 1989, Mrs. Clapper filed a petition for leave to relocate. ³ Mr. Clapper filed his answer to Mrs. Clapper's petition, together with a petition for sole physical custody. Mr. Clapper indicated that if Mrs. Clapper and the children remained in Somerset County, he would not pursue the latter petition. Consequently, a hearing was held on August 2, 1989 to determine whether Mrs. Clapper should be allowed to relocate with the children. After the hearing, the trial court denied Mrs. Clapper's petition as being contrary to the best interests of the children. This appeal followed.

We are now faced with the difficult task of determining whether the trial court erred in denying Mrs. Clapper's petition to relocate and whether the trial court's order forbidding Mrs. Clapper from removing the children to Connecticut was a violation of Mrs. Clapper's constitutional right to travel. Before we discuss Mrs. Clapper's appeal, it is important, and necessary, that we clarify the real issue in this case.

This is not an ordinary custody dispute. ⁴ Both parties, as well as the children, are satisfied with the present custody arrangements. The issue in this case is where the Clapper children should live. Nevertheless, we are governed by one standard: the best interests of the children. Murphey v. Hatala, 350 Pa.Super. 433, 438-39, 504 A.2d 917, 920 (1986). We have reiterated this notion time and time again. See Albright v. Commonwealth ex. rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980). In determining what will serve the best interests of the children, the trial court must consider all of the facts and circumstances of a given case. Commonwealth ex. rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 68, 434 A.2d 130, 133 (1981) ("the hearing court must provide this court not only with a complete record, but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision") (citations omitted); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 390 A.2d 1326 (1978). A parent's decision to move out of state, for instance, would be but one factor to consider in assessing the children's best interests. In re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 463, 390 A.2d 1326, 1329 (1978). Here, we are to consider where the children's best interests will be served--in Somerset or in Connecticut.

This Court has not specifically addressed the issue of whether a denial of a parent's petition to relocate with the children represents an unconstitutional travel restriction. ⁵ However, we have noted that "Pennsylvania courts no longer adhere to a preference favoring a resident custodial parent." Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 44, 446 A.2d 1323, 1326 (1982) (citations omitted). Moreover, "[t]o condition an award of custody upon [a party's] agreeing to remain within Pennsylvania would be 'an undue interference with the [party's] freedom of movement.' " Id. at 44, 446 A.2d at 1327 (citations omitted) (emphasis added). See also Lozinak v. Lozinak, 390 Pa.Super. 597, 569 A.2d 353 (1990) (dissent, Popovich, J.). In each (custody) case, we stressed that the strength and stability of the relationship between the parents and the children was of the utmost importance. See also Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988). ("Courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child's needs.") The potentially adverse effect of interstate movement was not the focus of our decisions. We do not dispute that a child of tender years will adjust to new environments. The question is whether that move will be in the child's best interest. See Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 44-45, 446 A.2d 1323, 1326-27 (1982); see also Commonwealth ex. rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (parent's intention to relocate with the child was not the controlling factor in a custody dispute); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 463, 390 A.2d 1326, 1329 (1978) (there are "circumstances where a court may properly consider the effects of a change of location," however, to deprive a mother of custody because of a proposed move represents an undue interference with her freedom to travel). Finally, in Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974) we held:

Appellee's intention of taking the boy to Scotland does not necessitate a reversal of the decision below. The fact that the child will be removed to a place outside the Commonwealth is not controlling. 'The paramount consideration is at all times the best interests and welfare of the child, which includes its physical, intellectual, moral and spiritual well-being, and all other considerations are subordinate.'

Id. at 604-05, 327 A.2d at 148 (citations omitted) (emphasis added). ⁶

The instant case is difficult. Both parents are fit; both parents want what is best for their children. Additionally, both parents have been very cooperative with one another in an effort to facilitate warm relationships with the children at minimal emotional costs. However, the record in this case reveals that Mrs. Clapper wants to move to Connecticut to better her education, occupational skills and opportunities and quality of life. ⁷ The record, read in its entirety, supports the trial court's finding that Mrs. Clapper's goals are related to self-improvement. See N.T., August 2, 1989, testimony of Linda Clapper, at 72-140. See also Trial Court opinion, at 5, 8-9. While we can not fault Mrs. Clapper for wanting to better her life, she may be accomplishing her goals at the expense of the children. ⁸ The effect of the move would be to uproot Jessica and Jon from familiar and congenial surroundings and to remove them from their father, who up to this time has maintained a steady and frequent relationship with his children. ⁹

In Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), this Court aptly stated our standard and scope of review:

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court's inferences drawn from the facts. However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where we find that the custody order is "manifestly unreasonable as shown by the evidence of record ..." will an appellate court interfere with the trial court's determination. Therefore, unless the trial court's ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody.

Id. at 21, 550 A.2d at 1343 (citations omitted); see also Commonwealth ex. rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). In the instant case, we defer to the trial court's findings of fact, ably set forth in its opinion. ¹⁰ The record adequately reflects the trial court's conclusion that the children's best interests would be served by remaining in Somerset. In that way, the status quo would be maintained and the children could continue to spend quality time with their father on a consistent basis. ¹¹

Although it is unfortunate that by the trial court's decision, Mrs. Clapper felt penalized for her efforts to better her life and that of her children, the issue preserved for our review is whether the trial court erred in determining the best interest of the children. We cannot conclude that it erred. As the primary caretaker, it is Mrs. Clapper's duty to provide for her children's best welfare even though as a result she is forced to make a personal sacrifice. We do not reach the merits of Mrs. Clapper's claim that her constitutional right to interstate movement was violated in this case. Rather, the trial court correctly concentrated on providing the best life for Jessica and Jon and decided, based on all of the evidence and the pertinent law, that the children's best interests would be served if they remained in Somerset. Commonwealth ex. rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981) (trial judge is in the best position to evaluate attitudes,...