Kline v. Kline

83 Pa. D. & C.4th 424
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJune 19, 2006
Docketno. 04-10882 #4
StatusPublished

This text of 83 Pa. D. & C.4th 424 (Kline v. Kline) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kline v. Kline, 83 Pa. D. & C.4th 424 (Pa. Super. Ct. 2006).

Opinion

CAMPBELL, J,

A custody trial was held in the above-captioned matter on June 2, 2006. At issue was primary custody of the parties’ minor children Kristopher Kline, born December 7,1994 and Samantha Kline, born November 2, 2001. The court finds as follows:

I. FINDINGS OF FACT

(1) Plaintiff, John E. Kline (Father), is an adult residing at 1462 Cedar Top, Reading, Berks County, PA. Father resides in a three bedroom apartment.

(2) Defendant, Janet Kline (Mother), is an adult residing at 32 East Mohn Street, Mohnton, Berks County, PA. Mother resides in her mother’s two bedroom house.

(3) Mother and Father live close to one another, less than two miles apart. They both reside in the Governor Mifflin School District.

(4) Mother and Father are the natural parents of two children: Kristoffer Kline, born December 7, 1994, and Samantha Kline, born November 29,2001.

(5) Mother and Father were married in 1994 and separated in 2004.

(6) Father filed a divorce complaint in December 2004. This divorce complaint contained a custody claim wherein Father petitioned for primary custody of the children.

[426]*426(7) On April 25, 2005, after a hearing, a protection from abuse order was entered against Father by the court on behalf of Mother as a protected person. This protection from abuse order contained a custody provision that awarded primary physical custody of the parties’ two children to Mother. Father was awarded partial physical custody of the children on alternate weekends from 12 p.m. Saturday until 6 p.m. Sunday, and each Wednesday from 5:30 p.m. until 8:30 p.m.

(8) The parties participated in a custody evaluation by Andrea W. Sledge M.S.W.

(9) The parties participated in a custody hearing on July 15, 2005. The custody master issued a recommended order August 10, 2005.

(10) Mother filed timely exceptions to the master’s recommended order.

(11) This current custody trial is a trial de novo in response to the exceptions filed by Mother to the custody master’s recommended order of August 10, 2005.

(12) Father graduated from high school.

(13) Father is employed as a painter at Reading Truck Body in Reading. He earns approximately $38,000 a year.

(14) Father works Monday through Thursday from 7 a.m. until 5 p.m.

(15) Mother obtained a G.E.D. and has taken additional college classes. She is currently continuing her higher education at Reading Area Community College (R.A.C.C.).

(16) Mother works part-time at R.A.C.C. and also works part-time at C.P.I. Inc. (Sears Portrait Studio). [427]*427Mother’s current annual income is unclear. It appears to be in the low range, between $3,500 to $15,000 annually.

(17) Mother’s work hours vary. This school term she was working day shifts at R.A.C.C. between 9 a.m. and 4 p.m. She also attends classes. This term she was attending classes on Monday and Wednesday nights.

(18) Kristoffer Kline, age 11, attends fifth grade at Governor Mifflin Intermediate School.

(19) Samantha Kline, age 4, has been attending preschool at the Reading Area Community College Day Care Center.

(20) The two children also have regular babysitters while Mother is at work,

II. DISCUSSION

Father and Mother both seek primary physical custody. Mother has had primary physical custody by way of the protection from abuse order. Father’s partial custody has only been one overnight every other weekend, and three hours every Wednesday evening. This court considered the testimony of Father — John E. Kline, Mother — Janet Kline, custody evaluator — Andrea Sledge, mother of Ms. Kline — Ms. Michelle Davis, sister of Father — Kristen Kline, sister of Father — Karen Kline, previous neighbor and acquaintance of the two parties — Carol Knepp.

A court’s custody decision “is a determination of what is in the best interests of the child. Such a determination, made on a case-by-case basis, must be premised upon consideration of ‘all factors which legitimately have an [428]*428effect upon the child’s physical, intellectual, moral and spiritual well-being.’ ” Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995), quoting Lee v. Fontine, 406 Pa. Super. 487, 488, 594 A.2d 724, 725 (1991). The best interests of a child are “paramount.” Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995).

While this court will carefully consider Father’s request for primary custody, courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the child. Wiseman v. Wahl, 718 A.2d 844, 846 (Pa. Super. 1998). In this case, no written custody agreement or order appears in the record until the protection from abuse order. However, Mother was the primary caregiver during the marriage and after the separation in 2004. The court entered the April 25, 2006 protection from abuse order with the custody provision formalizing Mother’s primary physical custody until the custody case could be resolved.

These children appear to be thriving. Both children appear healthy. Kristoffer is an honors student and excels in an extracurricular activity. Samantha is cheerful and outgoing. When they testified, the children appeared to love both parents. They did not express any desire to have custody time shifted from Mother to Father. If anything, their testimony showed they are more psychologically and emotionally connected to their Mother.

As the children are currently doing well, this court needed a convincing rationale as to why changing primary custody would be in their best interest. Father argued that he was a better parent. Father’s main evidence [429]*429to support his request for a change is the custody evaluator’s opinion. This court was extremely interested in what the evaluator had to report and studied the evaluator’s report and testimony carefully. The evaluator was extremely positive about Father, and extremely negative about Mother.

A. Regarding the Custody Evaluation

The evaluator portrayed Father as pro-active, patient, caring and responsible. The evaluator portrayed Mother as angry, manipulative, self-centered and fraudulent. If this court had seen evidence at trial to support the evaluator’s conclusions, this custody decision would have been straightforward. But that evidence was simply not there. This court is at a loss to reconcile the evaluator’s portrayals of the parents with the evidence in the record and with the evidence that came out at trial.

A trial court cannot “discount” an expert evaluation unless there is competent evidence to support doing so. King v. King, 889 A.2d 630, 632 (Pa. Super. 2005), quoting Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super.

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Related

Wiseman v. Wall
718 A.2d 844 (Superior Court of Pennsylvania, 1998)
Nomland v. Nomland
813 A.2d 850 (Superior Court of Pennsylvania, 2002)
Lee v. Fontine
594 A.2d 724 (Superior Court of Pennsylvania, 1991)
Alfred v. Braxton
659 A.2d 1040 (Superior Court of Pennsylvania, 1995)
Costello v. Costello
666 A.2d 1096 (Superior Court of Pennsylvania, 1995)
King v. King
889 A.2d 630 (Superior Court of Pennsylvania, 2005)

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Bluebook (online)
83 Pa. D. & C.4th 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kline-v-kline-pactcomplberks-2006.