Gruber v. Gruber

• Decision Date: 03 December 1990
• Citation: 583 A.2d 434,400 Pa.Super. 174
• Parties: , 59 USLW 2432 Peggy L. GRUBER, Appellant, v. Kenneth E. GRUBER, Jr., Appellee.
• Court: Pennsylvania Superior Court

Page 434

583 A.2d 434

400 Pa.Super. 174, 59 USLW 2432

Peggy L. GRUBER, Appellant, v. Kenneth E. GRUBER, Jr., Appellee.

Superior Court of Pennsylvania.

Argued Oct. 4, 1990.

Filed Dec. 3, 1990.

Michael A. Goldber, Lancaster, for appellant.

George E. Christianson, Lebanon, for appellee.

Before OLSZEWSKI, BECK and HOFFMAN, JJ.

BECK, Judge:

The issue in this case is the standard to be applied by a trial court in determining under what circumstances a parent who has primary physical custody may relocate outside the jurisdiction of the court.

Appellant, Peggy Gruber (mother), appeals from the trial court's order denying her permission to move out of the state with her children and conditioning her continued retention of primary physical and legal custody of her children on her remaining in Pennsylvania. For the reasons which follow, we affirm in part, reverse in part and remand for proceedings consistent with this opinion.

Appellant Mother and appellee Kenneth Gruber, Jr. (father) were married in 1980. They have three children: Jason, age 4; Stephanie, age 2; and an infant born after this appeal was filed. ¹ The parties separated in November, 1989. On November 15, 1989, the court issued an order that gave legal and primary physical custody to mother and gave father visitation on alternate weekends and numerous, specified holidays. This order reflected a custody agreement between the parties.

After the parties separated, mother and children continued to live in the house which she rented from father's parents. Pursuant to an order entered together with the above-mentioned custody order, father was paying mother $475.00 a month in child support and $150.00 a month in spousal support. Father visited the children approximately as often as the visitation schedule allowed.

During one of his visits with the children on New Year's eve, 1989, father argued with mother and allegedly shoved and hit her in the shoulder. The parties' small children witnessed the conflict. Mother was pregnant at the time. A few days later, as a result of the recent clash and also because of continued threats to her safety, mother petitioned the court for a protection from abuse order. The parties agreed by stipulation that father would refrain from any manner of abuse in the future. However, the stipulation did not restrict father's visitation with the children except to the extent that it imposed a notice requirement and also prescribed that the visits would take place in father's parents' nearby apartment. Mother became increasingly depressed and isolated in her surroundings. Her deteriorating psychological state was the result of many factors including the confrontations with her husband, a perceived animosity from her in-laws, a lack of emotional support in the absence of friends or family, and anxiety about having to move from her apartment which no longer was going to be available to her through her in-laws. As a result appellant decided that the best alternative for herself and the children would be to relocate to an area where she would have family and support nearby and where she could conclude her pregnancy and begin caring for her children in a more stress-free and promising environment. Appellant's brother and sister-in-law in Illinois invited her and the children to live with them in their home and, in addition, offered to support them until she became self-sufficient.

Father learned of mother's intentions to leave Pennsylvania. On January 30, 1990 he petitioned the trial court for issuance of a writ ne exeat seeking to prevent mother from removing the children from the state. ² Two weeks later, mother petitioned the trial court for modification of the visitation order "so as to accommodate [mother's] permanent return to Illinois with her two minor children".

A hearing was held on the two petitions on February 26, 1990 before the Honorable G. Thomas Gates. At the hearing both mother and father testified regarding the potential impact of the move. Mother explained that her brother had offered her and the children a home, support and help with future employment. She testified that her brother was her closest relative and that other relatives were at even greater geographical distances. She emphasized that she had no friends in the area and felt exceedingly isolated. Her understanding was that she had to vacate her current living arrangements in the near future and was unable to afford alternate housing. ³ Although she acknowledged that appellee had offered to permit her to stay in their former marital residence, she hesitated because it was in an unfinished condition, was very expensive to maintain and was, once again, extremely isolated. Mother also testified that she recently had been treated for depression and she offered the testimony of Dr. Terry Tressler, her obstetrician. Dr. Tressler noted that appellant was under considerable stress as a result of her current family situation and stated that he thought the anxiety would have an unquantifiable yet real negative impact on her pregnancy. He opined that a move into a positive, supportive environment would lessen her tension and be beneficial to her health.

Father testified that he had been employed for over three years at the flight facility at Indiantown Gap as a helicopter mechanic and was entitled to thirty days off a year. He also is a member of the Pennsylvania National Guard which requires him to be on duty two weeks every summer. He stated that after he learned of mother's intention to leave the state with the children he concluded that, rather than have her relocate, he wanted custody of the children. Barring that, father stated a preference for splitting custody arrangements so that he would have the children during the school year and mother would have partial custody during the summer months. He stated further, in response to questioning, that should he have the children in the summertime, his parents would be able to care for them while he fulfilled his military obligations with the National Guard.

In an effort to convince the trial court to alter the formerly agreed upon custody arrangements, father testified that mother had, in his opinion, attempted to isolate the children from his parents and other family members and that her housekeeping and caregiving capabilities were inadequate. On his behalf, father called his sister and brother, both of whom testified that mother had tended to keep the children from fully participating in family events and from playing with their cousins. Father's sister also stated that mother's housekeeping was below par. In response, mother stated that her home had gotten markedly tidier since father had moved out. She further stated that she tended to avoid her brother-in-law's children as playmates for her own children because they had dissimilar child rearing approaches and she felt that the contact did not benefit her children. We note that Dr. Tressler described the children as seemingly happy, well-adjusted and well-behaved.

Following the hearing, the trial court issued an order which again awarded legal and primary custody of the children to their mother and visitation rights for the father. ⁴ However, the trial court ordered further that "the children shall not be removed from the jurisdiction of this Court. Should the mother move from the Commonwealth of Pennsylvania, the children shall remain in legal and primary custody of the father during the school year and with the mother during the summer vacation months of June, July and August."

Mother appealed to this court and challenges the trial court's refusal to modify the custody arrangements so as to allow her to move to Illinois and retain primary custody of the children. The trial court justified its conclusion by explaining that "the best interest[s] of the children are paramount to either parties' desires". The trial court apparently found that the children's interests could be served only by remaining in "an environment where they have access to both parents". The trial court noted that "[mother] can start her life over in another state, but the children's lives will not be disrupted in the process". We find that the trial court erred in so ruling and we reverse that aspect of the trial court's order.

In the instant "relocation" case, this court once again is faced with resolving a conflict with deep and almost irreconcilable competing interests at stake. Our task is to formulate a solution which recognizes and attempts to serve the crucial interests involved without creating excessive hardship. Until now, our court has articulated a standard for resolving "relocation" conflicts which states simply that the best interests of the child governs the result. See, e.g., Clapper v. Clapper, 396 Pa.Super. 49, 578 A.2d 17 (1990); Lozinak v. Lozinak, 390 Pa.Super. 597, 569 A.2d 353 (1990). While we do not dispute that achieving "the best interests of the child" remains the ultimate objective in resolving all child custody and related matters, we believe that the standard must be given more specific and instructive content to address, in particular, "relocation" disputes. Unless more direction is provided, the trial court is left without adequate guidance and of necessity may decide these cases on impressionistic and intuitive grounds. Such an approach does not do justice to the critical concerns at stake in "relocation" cases nor does it provide for uniform, even-handed, and predictable dispute resolution.

At the outset we note that our research has failed to reveal a consistent, universally accepted approach to the question of when a custodial parent may relocate out-of-state over the objection of the non-custodial parent. In fact, the opposite is true. Across the country, applicable standards remain distressingly disparate. Despite the disparity, however, a few guiding principles emerge from several well-reasoned cases which we have carefully examined...