Moore v. Moore

• Court: Pennsylvania Superior Court
• Writing for the Court: Author: Tamilia
• Citation: Moore v. Moore, 393 Pa.Super. 256, 574 A.2d 105 (Pa. Super. Ct. 1990)
• Decision Date: 30 April 1990
• Parties: Jonathan C. MOORE, Appellant, v. Rachel M. MOORE.

574 A.2d 105

393 Pa.Super. 256

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

Superior Court of Pennsylvania.

April 30, 1990

Argued March 7, 1990.

John J. Money, III, Hanover, for appellant.

Karen Semmelman, York, for appellee.

Before WIEAND, TAMILIA and POPOVICH, JJ.

TAMILIA Judge:

Appellant/father appeals the trial court's Order of June 2, 1989, awarding primary physical custody to appellee/mother and granting him partial physical custody of their four and one-half year old son Nicholas.

Father had primary physical custody of Nicholas from September, 1988 when Mother moved to Florida to attend college, until the June 2nd Order. While mother was in Florida, she saw Nicholas one weekend a month when she would fly back to Pennsylvania. Prior to that, the parties shared custody with mother having Nicholas Thursdays through Sundays and father having Nicholas Sundays through Thursdays. On February 25, 1988, father filed a petition to affirm custody and on March 21, 1988 mother filed her own petition for custody. Mother subsequently filed an amended petition for custody in which she alleged she was moving to Florida and wanted primary physical custody so she could take Nicholas with her.

A hearing on the petitions was held on February 7, 1989, and on February 10, 1989, the court entered an Order awarding primary physical custody to father with rights of partial custody to mother. Following this Order, mother returned to Pennsylvania, retained new counsel and filed a petition for rehearing and reconsideration, claiming the court failed to make a complete record at the February 7th hearing. After a hearing on the petition, the court vacated the custody Order and reopened the case for further testimony.

A second custody hearing was held in May wherein the testimony of February 7th was incorporated and for the first time, mother introduced the testimony of Dr Stanley Schneider, a psychologist, who evaluated the parties, father's girlfriend and mother's fiance, as well as Nicholas. Also at the hearing, mother indicated she was negotiating the purchase of a home in Florida but would withdraw her offer if she was unsuccessful in obtaining primary custody of Nicholas. Based on Dr. Schneider's testimony and his opinion that mother would be more willing to promote and encourage contact between Nicholas and the noncustodial parent and the maternal grandparents, the court entered a new Order on June 2, 1989, awarding primary physical custody to mother with father receiving partial physical custody. Mother plans to start Nicholas in school in Florida in September of 1990 when she returns to school to complete her graphic design degree.

Father now raises three issues on appeal, the first being whether the court erred in vacating the February 10, 1989 Order and allowing a rehearing. We agree this was error; therefore, for the reasons that follow we vacate the June 2, 1989 Order and reinstate the February 10th Order.

Mother filed her petition for rehearing and reconsideration on February 28, 1989, and on March 3, 1989, the court ordered argument on the matter, to be held March 10, 1989. Following submission of briefs by both parties, the court heard argument and on March 13, 1989 vacated its February 10, 1989 Order and granted mother's petition for rehearing and reconsideration. The trial court was without authority to vacate the February 10th Order, however, as a custody Order is a final, appealable Order, reviewable by this Court without any intervening procedures. Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). Under Pa.R.C.P. 1915.10(b) motions for post-trial relief may not be filed to an Order of custody and a party cannot circumvent the appellate process by filing a petition for rehearing and reconsideration. Consequently, the Order entered June 2, 1989 must be vacated and the Order of February 10, 1989 reinstated.

Notwithstanding the result stated above, we will address the other issues presented in this appeal to offer a decision on the merits to the parties and to provide future guidance to trial courts faced with similar situations.

Appellant/father also argues the court did not give proper weight to mother's decision to move out of state with their son, and the court erroneously relied on Dr. Schneider's testimony which was a prediction of future conduct. Mother raises an additional issue, claiming the court did not abuse its discretion in relying on 23 Pa.C.S. § 5303, which states as follows:

§ 5303. Award of sole custody

In making an order for custody to either parent individually, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. The court shall award sole custody when it is in the best interest of the child.

There is no question that Dr. Schneider's testimony influenced the court and was the determining factor in removing Nicholas from his father's care and awarding primary custody to mother, despite mother's decision to move Nicholas to Florida with her. The court based its February 10th Order on the evidence which showed both parents to be fit, loving parents and there was no reason to take primary custody away from father.

In our February 10th Order we found that the relationship between Nicholas and his father and the stability that his father has provided for Nicholas were controlling factors in our award of custody to the father.

At that time we saw absolutely no reason to disturb the status quo by awarding majority physical custody to the mother. We believe then as we do now that both parents have demonstrated a willingness to act as majority physical custodian, both parents can provide adequate living arrangements for their son, and both parents can provide financially for Nicholas, that both parents provide for Nicholas' religious training, and are generally concerned for his intellectual, emotional, and physical development.

(Slip Op., Dorney, J., 6/2/89, pp. 4-5.)

The court went on to say, however:

Unfortunately, we did not have any expert testimony except out of Constance Marshall who conducted the Moore's home study at the first hearing on February 7th.

We have that now and in the form of testimony from Dr. Stanley Schneider, a psychologist who evaluated the mother, the father, the mother's fiance, and the father's girlfriend, and observed the interaction of Nicholas with these adults.

Dr. Schneider found Nicholas to be the type of child as described by the other witnesses; strong willed, but well adjusted, adaptable, relating easily to other people, and a neat kid.

Dr. Schneider found the father to be inflexible and indicated that although he will apply [sic] with the Court Order, it is doubtful that he will be flexible in allowing additional contacts between Nicholas and his mother and the extended family.

On the other hand, Dr. Schneider found the mother to be more likely to encourage and permit a continuing and expanded relationship between Nicholas and his father and her extended family.

There is no question that Nicholas and his maternal grandparents share a close relationship. Dr. Schneider believes that this relationship is important to Nicholas and should continue and we agree that a healthy relationship between a child and that child's grandparents is important to...