Thomas v. Thomas

• Decision Date: 30 September 1999
• Citation: 739 A.2d 206,1999 PA Super. 249
• Parties: Christine A. THOMAS, Appellee, v. Robert W. THOMAS, Appellant.
• Court: Pennsylvania Superior Court

739 A.2d 206

1999 PA Super. 249

Christine A. THOMAS, Appellee, v. Robert W. THOMAS, Appellant.

Superior Court of Pennsylvania.

Argued June 14, 1999.

Filed September 30, 1999.

John C. Howett, Jr., Harrisburg, for appellant.

Edward J. Zamborsky, Allentown, for appellee.

Before McEWEN, President Judge, and CAVANAUGH, KELLY, POPOVICH, JOHNSON, FORD ELLIOTT, STEVENS, SCHILLER and LALLY-GREEN, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Lehigh County granting Mother's petition for primary custody and relocation of the parties' three minor children to Mobile, Alabama. Herein, Father contends that the trial court erred in granting the petition since (1) the trial court erred in considering the factors enunciated in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990), and (2) the trial court erred in failing to consider the best interest of the children. In the alternative, Father contends that, even if the Gruber analysis is applicable, the trial court erred in finding that Mother met the standards enunciated therein. For the reasons that follow, we vacate the trial court's custody/relocation order and remand for a trial court opinion consistent with this Opinion.

¶ 2 The relevant facts and procedural history are as follows: Mother and Father were married in May, 1987 and three children were born as a result of their marriage: Raymond, born August 23, 1990; Robert, born May 9, 1992; and Samantha, born March 24, 1994. The parties separated in December, 1994, but continued to live together in the marital home until Mother moved out on July 1, 1995. Following a hearing with a custody master, an agreed upon order was entered on August 28, 1995, whereby the parties would share physical and legal custody of the children by an equal three day-four day, four day-three day arrangement.

¶ 3 A divorce was granted to the parties on July 3, 1997, and, three weeks later, Mother filed a petition for modification of the custody agreement, requesting primary physical custody of the three children and permission to relocate them to Mobile, Alabama in order to live with her and her soon-to-be husband, Gregory Grindstaff.¹ Grindstaff, who was a family friend and worked with the parties at Air Products and Chemicals, Inc. (Air Products) in the Lehigh Valley area, accepted employment in Alabama after being laid off from Air Products in February, 1997. Father opposed the relocation and filed a counter petition for primary physical custody.

¶ 4 After two days of hearings, the trial court granted Mother's petition for relocation and primary physical custody. Father then filed a petition for reconsideration; however, the trial court failed to enter an order expressly granting or denying reconsideration within the applicable time period. Thereafter, Father filed a timely direct appeal with this Court on September 26, 1997. See Pa.R.A.P. 1701(b)(3).

¶ 5 Following appellate argument, a three-judge panel of this Court filed an opinion on July 28, 1998. Thereafter, Father filed a motion for re-argument en banc, which was granted by this Court, and the original panel opinion was withdrawn.

¶ 6 Our review of child custody matters is well settled:

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to [substitute] our judgment for that of the trial court. Rather, we are bound by findings supported by the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

Baldwin v. Baldwin, 710 A.2d 610, 612 (Pa.Super.1998) (citations and quotation omitted).

¶ 7 Father's first contention is that the trial court erred in considering the Gruber factors in the case sub judice since Gruber addresses a relocation petition filed by a parent who had primary physical custody, while the case at issue involves a relocation petition filed by a parent with equal shared physical custody. Father urges this Court to find that the appropriate standard in equal shared custody cases is the "best interest of the children" and that the Gruber factors should not be considered. Mother, on the other hand, argues that the trial court was permitted to consider the Gruber factors, with the best interest of the children as the paramount concern. For the reasons set forth infra, we conclude that, in relocation cases where the parties have equal shared physical custody, the Gruber factors are applicable and should be considered as part of an overall "best interest of the child" analysis.

¶ 8 In Gruber, this Court stated that in every relocation dispute, the trial court must consider:

the custodial parent's desire to exercise autonomy over 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.

Gruber, 583 A.2d at 439. With this in mind, the Gruber panel enumerated the following three factors for consideration by trial courts:

(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 momentary whim on the part of the custodial parent;

(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and

(3) The availability of realistic, substitute arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Zalenko v. White, 701 A.2d 227, 228 (Pa.Super.1997) (citing Gruber, supra

).

¶ 9 Father correctly points to the fact that the Gruber factors have not explicitly been applied in cases where the parties share equal physical custody, and one party seeks permission for primary physical custody and permission to relocate out of the state. However, we hold that the Gruber factors should be considered in such a situation.

¶ 10 Gruber begins by announcing that: "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." Id.583 A.2d at 435 (emphasis added). However, although the Gruber panel expressly indicated that it was not addressing "the situation in which the parents share physical custody of the child[ren] and each has an equal amount of time with the child[,]" it expressly indicated that "where appropriate[,] the standards set forth as to relocation as advanced in this opinion should apply." Id. at 437 n. 6. Therefore, contrary to Father's contention, the Gruber decision is not specifically limited to a primary physical custody situation and may be applied in other situations, such as equal shared custody, where it is appropriate to do so. As such, we must determine whether it is appropriate to consider the Gruber factors in this particular case.

¶ 11 In making this determination, we are mindful that case law makes it clear that "even in custody cases involving the relocation of one or both parents, the ultimate objective in resolving the custody matter remains the best interests of the child." Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa.Super.1998). "[T]he three factors we set forth in Gruber for the trial court to utilize in relocation disputes must ... be factored into the ultimate consideration of the court, which is to determine the best interests of the child." Baldwin, 710 A.2d at 614 (quotation omitted). See Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724, 726 (1991)

("While we acknowledge the refinements posited in Gruber in relocation cases, they do not create a new standard and we hasten to stress the polestar of our analysis in this case, just as it was in Gruber ... remains the best interests of the child...."). "The determination of a child's best interests involves the consideration of all relevant factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being." Clapper, 716 A.2d at 1273 (citation omitted). As such, it follows that the factors outlined in Gruber, if deemed relevant and likely to affect the children's physical, intellectual, moral and spiritual well-being, should also be applied and considered in an equal shared custody case where one party seeks to relocate the children out of state. See Clapper, supra (holding that where the non-primary custodial parent sought permission to relocate, the Gruber analysis was appropriate since the factors affected the best interest of the children). Here, we conclude that the factors outlined in Gruber are relevant and likely to impact the children's well-being, and, therefore, the trial court was permitted to consider the Gruber factors in this case in determining whether the change of custody and relocation were ultimately in the children's best interest.

¶ 12 Having determined that the Gruber factors are to be considered in equal shared custody cases, such as the one at bar, we must address Father's concerns regarding the trial court's analysis of Gruber. As mentioned previously, the first Gruber factor requires the trial court to determine the potential advantages of the move, the likelihood the move would improve substantially the quality of life for Mother and the children, and whether the move is the result of a momentary whim on the part of Mother...