Fox v. Garzilli

• Decision Date: 13 May 2005
• Citation: 875 A.2d 1104
• Parties: Janice Marie FOX, Appellant, v. Robert Francis GARZILLI, Appellee,
• Court: Pennsylvania Superior Court

875 A.2d 1104

Janice Marie FOX, Appellant, v. Robert Francis GARZILLI, Appellee,

Superior Court of Pennsylvania.

Argued January 12, 2005.

Filed May 13, 2005.

Joseph S. Britton, Langhorn, for appellant.

Robert F. Garzilli, appellee (pro se) (no brief filed).

Before: LALLY-GREEN, BOWES and KELLY, JJ.

OPINION BY BOWES, J.:

¶ 1 This is an appeal by Janice Fox ("Mother") from the June 11, 2004 order of the Bucks County Court of Common Pleas denying her request to modify a custody order insofar as it provided that the parties' children should attend school in Pennsbury School District, where Appellee Robert Garzilli ("Father")¹ resides, rather than Council Rock School District, where Mother currently resides. We are constrained to reverse.

¶ 2 The parties separated in October 2001 and entered into an agreed custody order on November 26, 2002, concerning their children, Olivia, born July 7, 1995, and Lara, born March 3, 1997. That order, which was dictated during a hearing, provided, in relevant part:

The parties agree that they shall have shared legal custody as this term is defined by the laws of the Commonwealth of Pennsylvania, both the statutory and case law. The parties shall, also, have shared physical custody consistent with the schedule as set forth below.

....

The parties agree that Olivia and Lara shall continue at Quarry Hill Elementary School in the Pennsbury School District through the remainder of this year or until further Order of Court. The parties further understand that this is entirely without prejudice to either party seeking a change in the school that the children are attending after their period of time — the agreed time at Quarry Hill School.

Therefore, it's fully underst[ood] by both parties it's completely without prejudice as to where the children will attend school next year consistent with the terms of this agreement.

Order, 11/26/02; N.T., 11/26/02, at 2, 8-9 (emphasis added). In addition to shared legal custody, Mother has physical custody Sunday through Thursday each week until the last week of each month when she additionally has custody for the weekend. Father has physical custody three weekends each month from Thursday evening until Sunday; the fourth week he has custody overnight, Thursday evening until Friday.

¶ 3 When the custody agreement was entered, the parties had not resolved equitable distribution issues. Mother did not know where she ultimately would reside because that decision depended upon her financial situation following equitable distribution. She therefore agreed to allow the children to attend school where the marital home was located for the balance of that school year. Once the economic issues were settled, Mother obtained a residence, and since the children resided primarily with her, she sought to have them change schools to the district where she had relocated. The parties live one and one-half miles from each other. Thus, on February 25, 2004, Mother filed a petition to modify the custody order insofar as it dictated where the children would attend school.

¶ 4 The court held a hearing on June 11, 2004, and found that both school districts provide a superior education. The record supports that conclusion. Although the students in Mother's district appear to score higher in most areas that typically are assessed, the differences are extremely slight. N.T., 6/11/04, at 44-45. The trial court noted:

The vast majority of issues raised on appeal deal with Petitioner's perception of the Court's overall assessment gauging the benefits and liabilities inherent in each school district. These issues range from the quality of services each school district has to offer, (e.g. class size, rankings, extracurricular activities) to the practicality of the custodial arrangements (e.g. commuting, school events, location of children's friends). Although these topics are relevant to an overall assessment of the best interests of the children, they are by no means our only consideration, particularly in light of the high quality of services offered in both school districts. Furthermore, many of the practical considerations presented are not yet relevant to our assessment. Specifically, the children currently attend first and third grades at Quarry Hill Elementary, which is located approximately two (2) miles from [Mother's] residence and somewhat closer to [Father]. [Mother] has requested a modification of the custody order so that the children would attend Goodnoe Elementary, which is located approximately one half (.5) mile from [Mother's] residence and just as close to [Father].

Under the current arrangement, the choice of school does not present a burdensome commute for either party, nor does it present a situation that is contrary to the best interests of either child. The majority of any perceived difficulties focused on the future possibility of inconvenience to [Mother] and the children, as [Mother] is more often responsible than [Father] for the children's transportation to and from school. [Mother] urged the Court to adopt the point of view that the earlier any change in school districts took place the easier it would be for the children to adapt to their new surrounding and integrate themselves in their new schools. Obviously, this position presupposes that a change in school districts is necessarily a foregone conclusion.

Trial Court Opinion, 8/30/04, at 4-5. The trial court ultimately refused to permit the children to transfer to the school district in which they reside with Mother.

¶ 5 Mother raises the following issues:²

A. Whether the trial court erred and/or abused its discretion by failing to enter an order granting Appellant's request to have the children attend school in the school district where Appellant, who is the children's primary custodian during the school year, resides.

B. Whether the trial court erred and/or abused its discretion by making what was originally a without prejudice custody order pertaining to having the children attend school where Appellee resides into a de facto with prejudice order.

C. Whether the trial court erred and/or abused its discretion by failing to appropriately consider the short and long term effects on Appellant and the children in refusing to have the children change school districts.

D. Whether the trial court abused its discretion and/or committed an error of law by allowing Appellee to testify as to the hearsay testimony of the children who were in first and third grade.

E. Whether the trial court erred and/or abused its discretion by requiring the children to attend the Pennsbury School District which Appellant believes is inconsistent with an appropriate interpretation of 24 P.S. § 13-1302.³

Mother's brief at 3.

¶ 6 Our standard and scope of review is well settled. In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992); T.B. v. L.R.M., 2005 PA Super 114. "As with initial custody determinations, appellate review of modification orders is broad." Jackson v. Beck, 858 A.2d 1250, 1252 (Pa.Super.2004). Moreover:

This Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. McMillen, supra at 202, 602 A.2d at 847. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. Jackson v. Beck, 858 A.2d 1250, 1254 (Pa.Super.2004); Dranko [v. Dranko, 824 A.2d 1215 (Pa.Super.2003),] at 1219 (citing Robinson v. Robinson, 538 Pa. 52, 57, 645 A.2d 836, 838 (1994)); Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352, 353 (1991),affirmed,533 Pa. 354, 625 A.2d 613 (1993). However, we are not bound by the trial court's deductions or inferences from its factual findings. McMillen, supra at 202, 602 A.2d at 847. Ultimately, the test is "whether the trial court's conclusions are unreasonable as shown by the evidence of record." Dranko, supra at 1219 (quoting Wheeler v. Mazur, 793 A.2d 929, 933 (Pa.Super.2002)). We may not interfere with the trial court's factual conclusions unless they are unreasonable in light of the factual findings, and thus represent a "gross abuse of discretion."1 Robinson v. Robinson, 538 Pa. 52, 56, 645 A.2d 836, 837-38 (1994); Jackson, supra at 1252 (quoting Luminella v. Marcocci, 814 A.2d 711, 716 (Pa.Super., 2002)); Graham v. Graham, 794 A.2d 912, 914-15 (Pa.Super.2002) (quoting Vineski v. Vineski, 675 A.2d 722, 723 (Pa.Super.1996)); S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super.2002.)

1 Supreme Court has clarified that whether the standard of review is articulated as "gross abuse of discretion" or simply "abuse of discretion," the test is the same: whether the trial court's conclusions are unreasonable based upon the evidence of record. The use of "gross" is mere surplusage. Moore v. Moore, 535 Pa. 18, 28, n. 4, 634 A.2d 163, 168 (1993).

Johns v. Cioci, 865 A.2d 931, 936 (Pa.Super.2004).

¶ 7 We find merit in Mother's claim that the trial court abused its discretion in denying the change of school districts. Mother first seeks application of the primary caretaker doctrine, which states that when both parents are otherwise fit, one parent's role as the child's primary caretaker may be given weight as a determining factor by the court in deciding primary custody. Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988). The instant matter does not involve a determination of primary custody, thereby rendering inapplicable the primary caretaker doctrine. However, since Mother has physical custody the majority of the time, we agree that the trial court should have given that factor weight when determining where the children should attend school.

¶ 8 We also are persuaded that, in refusing to permit the transfer of the children to the...