Moore v. Moore

• Decision Date: 05 November 1993
• Citation: 634 A.2d 163,535 Pa. 18
• Parties: Jonathan C. MOORE, Appellee, v. Rachel M. MOORE, Appellant.
• Court: Pennsylvania Supreme Court

Page 163

634 A.2d 163

535 Pa. 18

Jonathan C. MOORE, Appellee, v. Rachel M. MOORE, Appellant.

Supreme Court of Pennsylvania.

Argued May 7, 1992.

Decided Nov. 5, 1993.

[535 Pa. 20] Karen L. Semmelman, York, for appellant.

John C. Mooney, III, Hanover, for appellee.

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This case questions the propriety of the decision of the trial court in a custody case to grant a petition for reconsideration and rehearing. In addition to addressing the procedural questions raised, we must determine if the Superior Court applied the proper standard in reviewing the determination of custodial rights made by the trial court. For the reasons that follow we find that the trial court did not abuse its discretion in granting the petition for reconsideration and re-hearing; we also find that the Superior Court did not follow the proper standard of review, 393 Pa.Super. 256, 574 A.2d 105 and thus reverse.

The parties to this custody action were married on December 19, 1981 while they were both pursuing their undergraduate studies in Florida. In August of 1985 they moved to Lancaster, Pennsylvania and took up residence with the mother's parents (hereinafter the grandparents). Their son, Nicholas, was born on October 6, 1985. During this time period the grandparents provided financial support for the parties including the cost of father's continuing college education.

In the summer of 1986, mother, father and Nicholas resided with father's parents in Florida. The parties returned to the home of the grandparents in Pennsylvania in September 1986. At this point mother and father were experiencing marital difficulties and began counseling with their pastor. The mother had begun taking art classes at York college in Philadelphia. Father, rather than continuing his college education, sought full-time employment. The parties physically separated in November of 1986.

Upon separation mother and father, with the aid of their pastor, worked out a shared custody arrangement which provided that each parent would have Nicholas for two consecutive days in a rotating fashion. This arrangement continued until father began his present job in Hanover, Pennsylvania. Along with the new job, father moved farther away from the grandparents' home, and thus a revised shared custody arrangement was necessitated. Accordingly, mother and father, again with the assistance of their pastor, arranged a custody schedule whereby Nicholas would be with father from Sunday evening through Thursday evening and with mother Thursday evening through Sunday. This schedule was to be in place September through May as the mother was in school Monday through Thursday, and then reverse during the summer months.

During the fall of 1987 the parties began experiencing difficulties in agreeing upon modifications in the shared custody arrangement. Mother wanted greater flexibility in spending time with Nicholas during her school breaks. Father wanted to have more time with Nicholas on the weekends during the school year and to change the summer schedule to alternating seven day weeks, rather than the four day/three day schedule.

On February 25, 1988, father filed a petition to affirm primary physical custody of Nicholas with father. On March 21, 1988, mother filed a petition seeking primary physical custody of Nicholas. A pre-hearing conference was held on April 11, 1988, at which time the parties were unable to come to an agreement. Accordingly, an order was entered scheduling a full hearing on the cross-petitions for primary physical custody. The existing shared custody arrangement was to remain in effect until the hearing. On June 1, 1988 the mother filed an amended petition for physical custody, reflecting the fact that she intended to relocate to the state of Florida in September of 1988, in order to complete her college education. In addition, mother requested that a hearing date on the custody matter be scheduled prior to her move to Florida.

Pending the hearing on their petitions, the mother moved to Jacksonville, Florida and began school. The parties agreed that, until the hearing, Nicholas would remain with the father in Pennsylvania, with mother returning to Pennsylvania for visitation at least one weekend per month. In addition, grandparents were to have visitation with Nicholas one weekend per month. During this period mother received longer visitation with Nicholas during her holiday breaks and when father brought Nicholas to Florida.

On February 7, 1989, a hearing on both petitions was held. Testimony at that hearing was limited to the following witnesses: mother; father; Connie Marshall, a social worker who conducted a home study evaluation of the grandparents' home in Lancaster, Pennsylvania; and Kelly Olewiler, a woman who watched Nicholas in her home on the days father had custody, during the hours father was at work. On February 10, 1989, the court entered an order awarding primary physical custody to father. In that order the trial court found that both parents were "suitable to serve as majority physical custodian of Nicholas"; however, the court went on to conclude that, as Nicholas had been in the primary custody of father since September of 1988, there was no reason to alter the status quo, and thus majority physical custody was awarded to father. (Order of February 10, 1989 pp. 4-5.)

On February 28, 1989, mother filed a Petition For Re-Hearing and Reconsideration of the February 10, 1989 custody order. Mother had withdrawn from her college in Jacksonville, Florida and resumed residence in the grandparents' Lancaster, Pennsylvania home. In her petition for reconsideration, mother argued that the trial court had abused its discretion in finding that the period from September 1988 through February 1989, while Nicholas was in the primary physical custody of father, reflected the status quo, and that the record in this case was incomplete, thus precluding the trial court from reaching a custody decision that truly reflected what was in the best interests of Nicholas.

On March 13, 1989, following argument, the trial court vacated its February 10, 1989 order and granted the mother's request for rehearing and reconsideration. A supplemental hearing was scheduled for May 18, 1989. The trial court further ordered that the prior shared custody arrangement of alternating custody on a three-day/four-day schedule was to be in effect until the supplemental hearing.

At the Supplemental Hearing, the parties agreed to adopt and incorporate testimony from the February 7, 1989 hearing and present additional testimony. At the supplemental hearing the trial court heard testimony from: mother; Reverend Michael Alleman, the pastor who had counseled mother and father assisting them in reaching the original shared custody arrangements regarding Nicholas; Carol John and Susan Lovejoy, two friends of mother who spent a great deal of time with mother while Nicholas was in her custody; Marjorie Martyniak, mother's future mother-in-law; the maternal grandparents; Dr. Schnieder, a clinical psychologist, hired by mother, who interviewed and tested mother, father, and Nicholas as well as the fiancee and girlfriend of mother and father; Richard Martyniak, mother's fiancee; Barbara Benson, a psychiatric social worker who had been counseling mother; and Rebecca Rogers, mother's sister. Testimony was also heard from: father; Tammy Colgan, a child care worker at Nicholas' day care center in Hanover, Pennsylvania; Jane Ingram, a friend and co-worker of father who had spent time in father's company while he was with Nicholas; and Machelle Serafin, father's girlfriend.

On June 2, 1989, following the Supplemental Hearing, the court entered an order awarding primary physical custody to mother. The trial court stated in the order that although both parents would foster a suitable environment for Nicholas, the court found the mother to be more flexible in arranging a shared custody schedule that would provide the father more access to Nicholas than the father would foster if he were to have primary custody. The mother would also be more supportive of continuing contact between Nicholas and the grandparents.

On appeal the Superior Court found that the trial court was without jurisdiction to grant the petition for reconsideration as its order of March 13, 1989 was beyond thirty days of the original order dated February 10, 1989. Thus, on April 30, 1990 the Superior Court vacated the trial court order of June 2, 1989 and reinstated the order of February 10, 1989, thereby returning primary physical custody of Nicholas to the father. On May 30, 1990 the Superior Court denied the mother's application for supersedeas, filed a corrected opinion, and reaffirmed its order of April 30, 1990. In its corrected opinion, the Superior Court acknowledged that the trial court did have jurisdiction to enter the order granting reconsideration as the thirtieth day, March 12, 1989, was a Sunday. However, they found that the petition for reconsideration was in essence a post-trial motion which is specifically prohibited by the rules of procedure applicable to custody cases, and thus, the trial court was without authority to grant reconsideration. See Pa.R.C.P. 1915.10(b).

On March 15, 1991 this Court granted the mother's petition for allowance of appeal and her petition for supersedeas, whereby Nicholas was returned to the primary physical custody of the mother.

Our review of this case must begin with the Superior Court's determination that the trial court was without authority to grant reconsideration of its February 10, 1989 order. Simply stated, the learned Superior Court was incorrect. A motion for reconsideration is not a post-trial motion. A motion for reconsideration is addressed to the sound discretion of the trial court and may be filed within thirty days of the date of the order...