White v. White

• Decision Date: 18 November 1994
• Citation: 650 A.2d 110,437 Pa.Super. 446
• Parties: James Hal WHITE, v. Mary Dippolito WHITE, Appellant.
• Court: Pennsylvania Superior Court

Page 110

650 A.2d 110

437 Pa.Super. 446

James Hal WHITE, v. Mary Dippolito WHITE, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 25, 1994.

Filed Nov. 18, 1994.

Barbara J. Shah, Bethel Park, for appellant.

Richard J. Catalano, Pittsburgh, for appellee.

Before CIRILLO, TAMILIA and HOFFMAN, JJ.

TAMILIA, Judge:

Mary Dippolito White appeals from the December 10, 1993 Order denying her petition to relocate, along with minor son Brandon, to the state of California.

The parties were married in 1982, Brandon was born in 1985 and the parties separated in 1990 when appellant and son moved from the Allegheny County marital residence to Irwin Westmoreland County. In the summer of 1991, after appellee rebuffed her attempt to reconcile, appellant informed appellee of her desire to move to California so as to be closer to her family and improve her quality of life. Father opposed relocation and, in July, 1991, obtained a restraining Order prohibiting the move. After a hearing during which the court entertained testimony from both parties, their respective families and the court-appointed psychologist Dr. Stephen Schachner, the court denied mother's petition and directed, inter alia, should mother relocate, temporary custody would be granted to father pending resolution of his suit for primary custody. The Order also directed both parties to obtain counseling for parenting skills and appellee to seek counseling for substance abuse.

Mother raises four issues for this Court's consideration, beginning with the argument the court erred by refusing to allow testimony about father's non-payment of support. Appellant contends this testimony was relevant in that it impacted upon father's fitness as a custodial parent and precipitated mother's planned move to California.

A trial judge has broad powers concerning the conduct of a trial and particularly with regard to the admission or exclusion of evidence. Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990). In reviewing a trial court's decision to admit or exclude proffered testimony, this Court will reverse only if there has been an abuse of discretion or an error of law. Id.

Mother argued father's alleged failure to pay child support immediately following the 1990 separation was one of the reasons she chose to move to California and therefore was relevant to the relocation proceedings. The court, however, refused to allow the testimony reasoning a parent's ability to care for a child must be determined at the time of the hearing, in this case December, 1993, and a parent's prior negative behavior should be considered only if there is an on-going negative effect on the child. See Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983); see also Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1984). We agree with the trial court and find appellant has failed to meet her burden of establishing the proffered testimony was relevant to the issue at hand. The trial court properly stated the petition before it was one requesting relocation, and not one addressing support. Moreover, we note, nowhere in the record is there a copy of the support Order or documentation from the family division support section of the monthly amount paid or the accumulation of alleged arrearages. Further, we view this allegation with suspicion, in light of appellee's alleged arrearages, since no contempt Order had been sought. Because there is no support for appellant's argument father flouted the legal system by being delinquent in his support payments, appellant's boilerplate charge, premised on Bresnock, supra, does not permit the unsubstantiated allegation to be admissible as evidence. Also, contrary to appellant's present averment her move was financially motivated in an effort to secure otherwise unavailable free day-care, necessitated by father's failure to remain current in support, appellant readily admitted gratis day-care by Brandon's paternal extended family existed from the time the child was an infant. Finally, the court noted appellant, who holds a 1989 business/psychology degree from the University of Pittsburgh, made the economic decision not to attempt to secure local employment in her field, but rather to leave an assistant manager position with Firestone in order to waitress six days a week at a local restaurant. It is arguable any financial duress endured by appellant is self-imposed. The court's decision to disallow testimony regarding alleged support arrearages was proper.

Next, appellant argues the court abused its discretion by over-emphasizing Brandon's relationship with appellee's family, while down-playing or ignoring father's "tangential role" in Brandon's life. This argument is part and parcel of appellant's general contention the court's decision to deny mother's request for relocation was not in Brandon's best interests.

In Pennsylvania, custody and visitation matters are decided on the basis of the "best interests of the child" standard, considering all factors which legitimately have an effect upon a child's physical, intellectual, moral and spiritual well-being. Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991). In every relocation dispute it is necessary for the court to consider the following interests and make the appropriate accommodations:

the custodial parent's desire to exercise autonomy over the 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.

Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075 (1992), quoting Gruber v. Gruber, 400...