Peace v. Peace

10 Pa. D. & C.5th 212
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJanuary 28, 2010
Docketno. 10008 of 2001
StatusPublished

This text of 10 Pa. D. & C.5th 212 (Peace v. Peace) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peace v. Peace, 10 Pa. D. & C.5th 212 (Pa. Super. Ct. 2010).

Opinion

HODGE, J,

Before the court for consideration are two matters, the first being the petition for special relief filed by plaintiff/Father, requesting that defendant/Mother be held in contempt of court for violating this court’s order prohibiting her from removing the child from the jurisdiction of the court without written approval of either Father or the court, and the second, being a petition objecting to the defendant’s relocation to the State of Arizona with the child. Defendant/Mother filed an answer to the rule to show cause issued by the court on the relocation matter, as well as her own counter-petition to relocate.

The parties in this case are the parents of a minor child, K.P., born November 1, 2000.

The most recent order of court relative to the care, custody and control of the minor child is dated July 13, 2006, wherein Mother was granted primary physical custody of the minor child, with Father having partial custody of the minor child on alternate weeks from Sunday through Friday, each week, plus one weekend each month. In addition, paragraph 10 in the order indicated that neither party shall remove the child from the jurisdiction of this court without written consent of the other party or order of court. This order was a stipulated, consensual order of both parties.

There was a subsequent order on March 26, 2007, pertaining mainly to the holiday visitation schedule, [214]*214which order reaffirmed the prior orders of this court of July 13,2006, and November 17,2005, as to matters not modified by the March 26, 2007 order.

For a party to litigation to be found in civil contempt of court, it is necessary that the moving party prove that there was an existing order, that the offending party knew of the order, and willfully violated the order.

The testimony at the hearing on September 29, 2009, consisted of, among other things, an admission by defendant/Mother that she knew of the provisions of the court order relative to the provision on relocation, that she knowingly failed to notify Father of her move to the State of Arizona with the child, and that she moved to the State of Arizona with the child without notifying Father of her new address.

As a result, the court finds defendant/Mother in civil contempt of court, and will address the appropriate sanction in the order attached to this opinion.

In addition, the court, in civil contempt matters, is obligated to insert a purge condition, similar to this court’s interim order of September 30,2009, wherein the court granted temporary primary physical custody of the minor child, K.P., to plaintiff/Father, pending further order of court.

In that defendant/Mother complied with that order of court by returning the minor child to the custody of Father, this court finds that Mother met the purge condition on not only the order of September 30, 2009, but also which this court would have entered as a final order on the contempt petition.

[215]*215As to the relocation issue, the appellate courts conclude that the burden of proof in relocation proceedings is on the party seeking to relocate. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003).

Prior to September 2008, the evidence in this case is relatively uncontradicted from both sides. The parties were married and separated several months prior to the birth of the child on November 1, 2000. Thereafter, the first custody order was entered by the Honorable J. Craig Cox, of this court, on May 8,2001, granting the parents shared legal custody of the minor child, and Mother primary physical custody, as the parties mutually agreed. Thereafter, Father was substantially involved in the minor child’s life, leading up to the order of July 13,2006, wherein Father was granted partial custody of the minor child for alternate weeks from Sunday through Friday, plus one weekend per month.

In September of 2008, a dispute arose at a custody exchange, with each parent having a different version of what happened. Mother’s version was that she was trying to get the child to tell her father why the child did not want to stay the week with Father, apparently for some issue pertaining to Father’s current wife and her attempts to discipline the child. Father indicated that Mother was so far out of control, that for the sake of calming the situation and preventing a further escalation, he told the child to go back home with Mother until such time as Mother calmed down. Thereafter, Father did not exercise custody pursuant to the order of July 13,2006, however, he testified that he saw the child several times each week while the child was staying with his mother, who would [216]*216baby-sit the child for Mother after school until Mother’s work schedule permitted her to pick up the child.

Mother has been employed at McKesson Pharmaceuticals in New Castle, Pennsylvania, with her job title being that of lead warehouse worker for the past several years. Mother works shifts in New Castle, either 7 to 3:30, or 3 to 11:30, with no weekend work. Mother became aware of a job opportunity with McKesson in Arizona, and in July 2009, traveled to Arizona, without the child, to investigate the living and work situation in the State of Arizona. Mother was positively impressed by the living circumstances and the work circumstances in Arizona, and as a result, arranged a transfer from New Castle to the State of Arizona, and continued employment with McKesson Pharmaceuticals.

It is undisputed that Mother did not inform Father in any manner that she and the child were moving to the State of Arizona. Father’s testimony was that he observed a moving van at Mother’s residence, but concluded that she was merely changing residences within Lawrence County, as she had done numerous times since the child was bom. Only after Father heard through a mutual acquaintance that Mother had gone to Arizona, did he realize that Mother and child were, in fact, gone from New Castle.

Father then filed his petition for special relief and contempt on September 9, 2009, and this court held a hearing on September 29, 2009, leading to the court’s interim order of September 30, 2009, ordering Mother to return the child to New Castle pending further order of court.

[217]*217The Superior Court of Pennsylvania in the case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), set forth the standards and factors which the court must consider in every relocation dispute, those factors being as follows:

(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 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 would adequately foster an ongoing relationship between the child and the non-custodial parent.

Mother’s testimony relative to the Gruber factors were substantially as follows:

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Related

Dranko v. Dranko
824 A.2d 1215 (Superior Court of Pennsylvania, 2003)
Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)
Thomas v. Thomas
739 A.2d 206 (Superior Court of Pennsylvania, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
10 Pa. D. & C.5th 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peace-v-peace-pactcompllawren-2010.