Clapper v. Harvey

• Decision Date: 30 July 1998
• Citation: 716 A.2d 1271
• Parties: John CLAPPER, Appellee, v. Sharon Gordon HARVEY, Appellant.
• Court: Pennsylvania Superior Court

Page 1271

716 A.2d 1271

John CLAPPER, Appellee, v. Sharon Gordon HARVEY, Appellant.

Superior Court of Pennsylvania.

Argued June 23, 1998.

Filed July 30, 1998.

Charles M. Watkins, Reading, for appellant.

Charles J. Aliano, Montrose, for appellee.

Before POPOVICH, ORIE MELVIN and SCHILLER, JJ.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Susquehanna County which denied Mother's petition for modification of custody. Herein, Mother raises one question for our review: Whether the lower court erred by failing to apply the proper standards in deciding custody by a non-custodial parent seeking relocation. Upon review we vacate and remand.

Mother and Father began living together in Pennsylvania in 1988, but never married. A son, Harley David Clapper (Harley), was born to the couple on February 14, 1991. Mother, Father and their son lived together until May of 1992, when the couple separated and agreed that Harley would live with Mother in Susquehanna County. Mother and Harley lived there with Father's sister, Tracy Clapper, until December 1992, when they moved to Hudson, Florida, where Mother's parents lived. On January 29, 1993, Father filed a petition for custody in the Court of Common Pleas of Susquehanna County. On February 16, 1993, Father filed a petition for writ of habeas corpus in the Sixth Judicial Circuit Court in Pasco County, Florida. On March 1, 1993, Mother filed a petition to award child custody, in the same court in Pasco County, Florida. On March 12, 1993, the Pasco County Court granted the writ of habeas corpus, determined that Pennsylvania had jurisdiction over the case, and ordered Mother to deliver the child to Father on April 27, 1993, unless the Pennsylvania court decided otherwise.

In early May of 1993, temporary physical custody was granted to Father in the Court of Common Pleas of Susquehanna County. On May 28, 1993, after hearings were held, the court entered an order giving physical custody to Mother within the Commonwealth of Pennsylvania or within forty-five miles of Susquehanna County. Shortly thereafter, Mother returned to Florida with the child with full knowledge that the custody order required her to remain in Pennsylvania or within forty-five miles of Susquehanna County. On June 25, 1993, Father filed a motion to have Mother held in contempt and to have physical custody of the child transferred to Father. After an ex parte hearing held on July 9, 1993, the court found Mother to be in contempt of its order of May 28, 1993, and transferred physical custody of Harley to Father. Further, the court limited Mother to visitation under the supervision of Father or Father's mother. The court permitted Mother to purge herself of the contempt by returning to Pennsylvania with Harley and complying with the order of May 28, 1993. Rather than comply with the court order, Mother, ten months later, in April of 1994, turned over Harley to Father in Pennsylvania where he continues to reside. From that time to the present, Mother traveled from Florida to Pennsylvania on several occasions to visit Harley. On May 26, 1996, Mother filed a petition for modification of custody. Hearings were held on Mother's petition on August 28, 1996, and November 25, 1996. On November 26, 1996, the court filed an opinion and order denying Mother's petition. This appeal followed.

Turning to Mother's claim, we quote our Supreme Court:

As we have stated repeatedly, the paramount concern in child custody proceedings is the best interest of the child. This court has held that custody can be changed without proof of substantial change in circumstances when it is shown that the change is in the best interest of the child. (citations omitted).

Moore v. Moore, 535 Pa. 18, 30, 634 A.2d 163, 169 (1993). It is settled law in Pennsylvania that a custody order is subject to modification without proof of substantial change in circumstances when it is shown that change is in the best interests of the child. Id. Whenever a court is called upon to address the best interests of a child, traditional burdens or presumptions such as substantial change in circumstances, the fitness of one parent over another, or the tender years doctrine must all give way to the paramount concern; the best interests of the child. Id. In determining best interests of the child, a court must consider all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being. Swope v. Swope, 455 Pa.Super. 587, 689 A.2d 264 (1997).

Also well-settled is the proper standard of review for an appellate court in a custody case. As our Supreme Court said:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; 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 finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion. (citations omitted).

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992). Our Supreme Court noted that its reference to "scope of review" in McMillen was incorrect as it clearly was defining "standard of review." Moore, 634 A.2d at 168 n. 4. They also noted that McMillen 's reference to "gross abuse of discretion" was in fact no different than "abuse of discretion." Id. Under this broad abuse of discretion standard, we review the trial court's denial of Mother's petition for modification of custody.

Mother contends that a proper "best interests of the child" analysis in a case where the petitioning parent seeks to relocate the child to another jurisdiction includes consideration of the factors outlined in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990). These factors are the following:

First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent ... Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it ... Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Id. at 184, 583 A.2d at 439. Father correctly points to the fact that the Gruber factors have only been explicitly applied in cases where the "custodial" parent wishes to relocate with the child, and not where the non-custodial parent seeks custody of the child and requests the child's relocation to a different state. However, for reasons explained below, we believe these Gruber factors should be considered in appropriate cases, as part of the overall best interests analysis, when a parent...