Gancas v. Schultz

• Decision Date: 20 August 1996
• Citation: 683 A.2d 1207,453 Pa.Super. 324
• Parties: Robert A. GANCAS v. Barbara G. SCHULTZ, Appellant.
• Court: Pennsylvania Superior Court

Page 1207

683 A.2d 1207

453 Pa.Super. 324

Robert A. GANCAS v. Barbara G. SCHULTZ, Appellant.

Superior Court of Pennsylvania.

Argued March 21, 1996.

Filed Aug. 20, 1996.

David S. Pollock, Pittsburgh, for appellant.

Karen L. Ferri, Murrysville, for appellee.

Before McEWEN, President Judge, and HUDOCK and HESTER, JJ.

PER CURIAM:

This appeal by appellant-Mother, Barbara Schultz, is from the May 15, 1995 order granting primary physical custody of the parties' daughter to appellee-Father, Robert Gancas, and denying Mother permission to relocate with the child to New Jersey. We reverse and remand.

The parties met while they were students at the Pennsylvania State University and married on December 28, 1989. Both Mother and Father were in the United States Navy, initially stationed in San Diego and then in Japan, where they married. Father thereafter resigned his commission and sought civilian employment; Mother was transferred to Newport, Rhode Island, where they lived from December, 1988, until May, 1991. While there, one child, Elizabeth Gancas, was born of the marriage on March 22, 1989. In May, 1991, Mother was transferred to Pittsburgh, and Father obtained employment with Westinghouse Process Control Division as a software engineer. Mother was a lieutenant and a navy recruiter. Initially, the parties lived with Father's parents in Plum Borough, a suburb of Pittsburgh; they moved into their own home in the North Hills in October, 1991.

In late 1991 and early 1992, the parties tried to conceive a second child. In January, 1992, without warning, Father filed a complaint in divorce in which he sought, inter alae, custody of Elizabeth. On September 3 1992, the parties executed a shared custody agreement. The marital home was sold, and Mother moved to a townhouse in the same area; Father relocated to the eastern suburbs near his parents. Under the shared custody agreement, Elizabeth resided with each parent approximately three and one-half days per week. The parties divorced on December 20, 1993.

In March, 1993, Mother requested a custody conciliation based upon her belief that the shared custody arrangement was too stressful for Elizabeth. Following a conciliation with counsel on April 21, 1993, the Honorable Lawrence W. Kaplan noted that with "both parties realizing that mother will have to relocate sometime next year," the shared arrangement would be maintained pending psychological and home evaluations. This relocation purportedly was Mother's transfer in the navy.

In May, 1994, Father agreed to relinquish primary physical custody of Elizabeth to Mother. The following month, Mother became engaged to Bryan Schultz, a man she had known since childhood and whose family was close to her family in New Jersey. Mother also learned she was pregnant to Mr. Schultz in June, 1994. Based upon the realization that relocation to New Jersey was inevitable due to Mr. Schultz's job situation and the fact that Mother had set in motion the process for her resignation from the navy, Mother asked counsel to arrange legal proceedings after her marriage to Bryan Schultz to facilitate her move with Elizabeth to New Jersey. Mother and Mr. Schultz married on October 15, 1994. On November 17, 1994, Mother requested court approval to relocate with Elizabeth to New Jersey. In the meantime, upon learning of Mother's remarriage, Father requested his counsel to file a petition for special relief requesting that neither party be permitted to relocate from Allegheny County pending further order of court. Judge Kaplan instituted an interim shared custody arrangement, commencing when Father relocated from Plum Borough to the North Hills, and enjoined both parties from removing Elizabeth from Allegheny County pending a hearing, which was set for March, 1995. Father relocated to the North Hills, and Mother, although her husband lived in New Jersey, also remained in the North Hills.

Upon Father's relocation to the North Hills in January, 1995, Judge Kaplan instituted the interim shared custody arrangement, whereby Elizabeth spent two days with each parent followed by five days with each parent. A three-day custody hearing was held before Judge Kaplan on March 22-23 and May 9, 1995. At the conclusion of the third day of trial, the court recited its opinion into the record. As noted supra, the court denied Mother permission to relocate with Elizabeth and granted Father primary physical custody, with the parties sharing legal custody. This appeal followed.

Our scope of review is well-settled.

In reviewing a child custody order,

Our scope of review ... 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, the 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.

Vineski v. Vineski, 450 Pa.Super. 183, ----, 675 A.2d 722, 723 (1996).

When either parent files a petition which raises the issue of whether it is in the best interest of a child to move outside of the jurisdiction, "a hearing must be held either before the move, or under exigent circumstances, within a reasonable time thereafter." Plowman v. Plowman, 409 Pa.Super. 143, 153, 597 A.2d 701, 706 (1991). If the parents are able to arrive at a mutual decision regarding a minor child's move from the jurisdiction, a hearing is not required. Id. A hearing is not required because Pennsylvania does not have an "anti-relocation statute" prohibiting a custodial parent from removing a child from the jurisdiction without the consent of the noncustodial parent or permission of the court. See, e.g., N.J.S.A. 9:2-2; Ill.Rev.Stat. ch. 40, § 609 (1977); see also Wilder, Pa.Family Law Prac. and Proc. (3rd ed.), § 28-15, at 324. While Mother intended to file such a petition, Father filed his motion for special relief first. As the issue concerning relocation now was before the court, there was no reason for Mother to file a petition. Plowman makes it clear that either parent may raise the issue.

In every relocation dispute, the court must consider the following interests.

[T]he custodial parent's desire to exercise autonomy over the basic decisions that will directly affect his or her life and that of the children; a child's strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and, finally, the state's interest in protecting the best interests of the children.

White v. White, 437 Pa.Super. 446, 450, 650 A.2d 110, 113 (1994), quoting Gruber v. Gruber, 400 Pa.Super. 174, 184, 583 A.2d 434, 438-39 (1990). When faced with the decision whether to permit a custodial parent to relocate at a geographical distance from the non-custodial parent, a trial court must consider these factors:

1. The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a monetary (sic) whim on the part of the custodial parent;

2. The integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it; and

3. The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the noncustodial parent.

White v. White, supra, 437 Pa.Super. at 451, 650 A.2d at 113, quoting Gruber v. Gruber, supra, 400 Pa.Super. at 184-85, 583 A.2d at 439. The factors to be considered are refinements of the basic standard which remains the best interest of the child. Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991); see also Pa.Family Law Prac. and Proc., supra. Moreover, the fact that considerable distance will increase the cost and logistical problems of maintaining contact between the child and the noncustodial parent does not necessarily preclude relocation when other factors militate in favor of it. Id.

We note that Father makes much of the fact that when he agreed to give Mother primary physical custody of Elizabeth in May, 1994, "because it was in [Elizabeth's] best interest," notes of testimony ("N.T."), 3/22/95, at 188, Mother did not disclose that she had been dating Bryan Schultz for the past two months. He implies that Mother attempted to perpetrate a ruse and trap him into agreeing to give Mother primary physical custody. This is indicative of the manner in which Father addresses every situation involved with his child's custody: he and his counsel are extremely adversarial and exaggerate the effect of every action on Mother's part. In fact, referring to his relationship with Mother, Father stated at trial that "it is difficult for me to foresee that we will ever have an amicable relationship." N.T., 3/23/95, at 365. We do not find it deceitful that in May, 1994, Mother did not disclose to her ex-husband that she had developed a relationship with Mr. Schultz in the past two months. Mr. Schultz did not propose to Mother until June, and it was at that time that Mr. Schultz learned that Mother was pregnant. N.T., 5/9/95, at 8. Therefore, in May, 1994, when Father agreed to the custody change, Mother did not know she would relocate. Furthermore, Mother testified that she knew she would not be leaving Pittsburgh without a relocation hearing. N.T., 3/22/94, at 131. Father's preoccupation with this point is not warranted.

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