Pamela J. K. v. Roger D. J.
| Citation | 419 A.2d 1301,277 Pa.Super. 579 |
| Parties | PAMELA J. K. v. ROGER D. J., Appellant. |
| Decision Date | 09 May 1980 |
| Court | Superior Court of Pennsylvania |
Argued March 13, 1980. [Copyrighted Material Omitted]
Delano M. Lantz, Harrisburg, for appellant.
Marvin Rudnitsky, Selinsgrove, for appellee.
Before SPAETH, BROSKY and VAN der VOORT, JJ.
This appeal arises from an order granting custody of appellant's daughter, Juliet, to appellee, her mother.
--HISTORY OF THE CASE--
The parties were married on July 12, 1969, and lived in Sunbury Pennsylvania, where appellant was a senior high school teacher, and appellee participated in semi-professional theatrical productions. Juliet was born on May 10, 1971, and is the only child of the marriage. Marital problems arose and in the fall of 1973 the parties separated. Appellant remained in Sunbury; appellee took Juliet with her to New York. Appellant's consent to appellee's custody of Juliet was memorialized in a written agreement between the parties dated December 7, 1973. On January 4, 1974, appellee obtained a divorce from appellant.
From the date of the parties' separation until October 1975, Juliet was with appellee. During this period, appellee received from appellant $20 a week in support, which was supplemented by public assistance. Appellant visited Juliet occasionally. By September 1975, appellee had decided that to escape her poverty she would enlist in the armed services. When she was informed that she would not be allowed to keep Juliet with her during the initial six to eight months after enlistment, she asked appellant to assume temporary custody of Juliet for this period. Appellant refused, stating that he would take Juliet only if his custody were made "permanent." Appellee reluctantly acceded to appellant's terms, and on October 4, 1975, the parties entered into a second written agreement, this one giving appellant "permanent custody" of Juliet. Soon thereafter Juliet moved into appellant's household. [1] About this time, appellee was accepted into the United States Navy on a delayed enlistment basis, and on May 7, 1976, she entered active service.
From October 1975 to the present, Juliet has been living with appellant, appellant's new wife, Susan, and Ryan, Susan's son by a previous marriage. [2] Also appellant and Susan have had a daughter, Brooke, who was four months old at the time of the hearings below. It is clear from the record that appellant has taken good care of Juliet. Juliet is doing well in school, has friends in the neighborhood, and appears to be happy. She has her own bedroom painted in her favorite colors and characters. She and Ryan, who is approximately eighteen months younger than she, are fast playmates, and she is proud of her new sister Brooke. Appellant has been a good father, who spends his evenings at home (except when he has a meeting to attend), takes his family on outings to state parks and the seashore, spends time playing with his children, organizes family activities, and is providing for Juliet's moral education. Furthermore, he has demonstrated qualities that are appropriate for Juliet to emulate. He has a record of public service as an athletic coach, a foster parent, and chairman of Juvenile Court Services, has voluntarily undergone potentially fatal surgery to donate one of his kidneys to his sister, and has been honored on several occasions as teacher of the year in his district. Susan, in her own right, has provided proper care for Juliet, and both she and appellant make a concerted effort to avoid favoritism in their relationships with their children. Although Susan works as a learning disabilities teacher, her working conditions are such that she has been able to respond immediately to emergencies in her family.
Appellee does not question appellant's fitness as a parent. Her position is that appellant is not serving Juliet's best interests because he has unreasonably interfered with Juliet's right to visit and spend time with her. As appellee forcefully stated during the hearings below:
I believe that I have been denied the right to see my child and that she has been denied the right to know me. I think that my position in her life has been blocked out, that I am invisible, and I am not regarded by her father and her step-mother. I am not taken into consideration and I believe that I have a great deal to offer Juliet . . . .
To understand this statement, it is necessary to summarize the evidence regarding the visits that have (and have not) occurred between Juliet and appellee since appellant was given custody of Juliet. [3]
As already noted, Juliet moved into appellant's household in October 1975. The parties agreed that appellee would not see Juliet for several months after the move in order to allow Juliet time to adjust to her new surroundings. Appellee's first visit with Juliet was on December 14, 1975, for one day. Appellee then asked if she might see Juliet at Christmas, and appellant refused. Appellee then asked if she might have Juliet with her for a week in January, and appellant again refused. Appellant claimed the visits would be psychologically damaging for Juliet. Appellee then secured legal counsel to protect her right to visit Juliet. Through counsel's intervention, appellant ultimately permitted appellee to have Juliet from January 31 to February 8, 1976. It is noteworthy that at one point during the negotiations between the parties concerning this visit, appellant suggested that appellee should take Juliet back permanently. Several days later, when appellee accepted the suggestion, appellant withdrew it.
Appellee's next visit with Juliet was in March. It lasted for a weekend, and evidently was without incident. After appellee entered the Navy on May 7, 1976, she did not see or communicate with Juliet for several months. Their next visits were on October 9-10 and December 10-12, 1976. These visits also were without incident, except that a dispute arose concerning appellee's request to visit Juliet at Christmastime. On December 12 appellant told appellee that she would not be permitted to visit Juliet at Christmastime. He withdrew the permission he had previously given, which understandably upset appellee, for she had already taken military leave to visit Juliet at Christmastime and had made arrangements with her family in connection with the visit. Appellee therefore again retained counsel, and eventually appellant agreed to permit a visit on December 27, two days before appellee had to report back to her station. Appellee, however, did not learn of appellant's concession until January, and the visit did not occur.
Appellee's next visit with Juliet was a weekend in January 1977, and further visits occurred in March and May. These visits, it appears, were without incident, except that appellant informed appellee that she could no longer come inside when she arrived at his house to take Juliet, but had to wait at the door. It also appears that during the first part of 1977, in the winter, appellant failed to keep appellee informed of Juliet's health and progress in school, and appellee received but one card from Juliet. The parties' next visitation dispute concerned Juliet's presence at appellee's wedding to her present husband in June 1977. Appellee wanted Juliet to be a flower girl in the wedding. Appellant initially refused to allow Juliet to attend the wedding, giving as his reason that she would miss her kindergarten classes. This reason was obviously specious, for the superintendent of schools informed appellee that it would be educational for Juliet to attend the wedding, which was to take place at West Point, New York. Nevertheless, appellant's intransigence, which by this time included a refusal to allow appellee to speak with Juliet on the telephone, [4] necessitated appellant's retention of legal counsel once again, and once again, after appellee retained counsel, appellant suggested that appellee should take Juliet back permanently, and then upon further reflection withdrew the suggestion. Eventually, the parties stipulated to the entry of a visitation order dated May 26, 1977, giving appellee custody of Juliet from June 4-9, 1977 (to permit Juliet's attendance at appellee's wedding), for two additional weeks in the summer of 1977, for one month in the summer of 1978, for ten days during the 1977 Christmas holiday, and for other periods "as may be agreed upon by mutual consent, which consent shall not be unreasonably withheld." When this stipulation was made, appellant knew that in the summer of 1978 appellee and her new husband would be living in the Panama Canal Zone, where appellee's husband would be stationed, and that Juliet would be visiting them there.
The summer visits and Christmas visit in 1977 occurred without further legal dispute between the parties. There was evidence, however, that appellant neglected to prepare Juliet emotionally for her Christmas visit with appellee, and that as a result, Juliet initially did not want to go, although when she did go, she had a good time.
From January to April 1978, appellee and her new husband, Les, were in Georgia, where Les was undergoing military training. During this period appellee did not visit Juliet, nor Juliet her but appellee wrote to Juliet twice a month. Appellee, however, received no communications from Juliet. Moreover, it appears that Juliet did not receive at least one letter from appellee in which appellee tried to prepare Juliet for her impending summer visit to the Panama Canal Zone. In April 1978, after appellee and Les moved to the Canal Zone, appellee received a letter from appellant's attorney stating that appellant after all would not send Juliet to Panama, unless he received financial assurance that appel...
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