Witherite v. Witherite

8 Pa. D. & C.5th 439
CourtPennsylvania Court of Common Pleas, Centre County
DecidedJuly 30, 2009
Docketno. 2008-4245
StatusPublished

This text of 8 Pa. D. & C.5th 439 (Witherite v. Witherite) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witherite v. Witherite, 8 Pa. D. & C.5th 439 (Pa. Super. Ct. 2009).

Opinion

RUEST, J,

Presently before the court is a complaint for custody filed by plaintiff Julie L. With[441]*441erite on October 2, 2008. An interim order was entered on November 5,2008. Ahearing was held on March 16, 2009, and briefs submitted on or about May 1, 2009.

FINDINGS OF FACT

(1) The parties, Carl E. Witherite Jr. (Father) and Julie L. Witherite (Mother) are husband and wife, having been married on December 31, 1998.

(2) The parties are the parents of one minor child, Alex Witherite, whose date of birth is July 18, 1996.

(3) Pursuant to the court’s order of November 5,2008, the parties share legal custody, and Mother has primary physical custody, with Father having periods of partial physical custody every other weekend and at such times as may be arranged between the parties.

(4) Mother resides in a two-bedroom rented residence at 106 Water Street, Centre Hall, Centre County, Pennsylvania.

(5) Mother’s residence is in the Penns Valley Area School District.

(6) Father resides with his parents at 110 Hill Street, Unionville, Centre County, Pennsylvania.

(7) Father’s residence is in the Bald Eagle Area School District.

(8) Alex is in the seventh grade at the Penns Valley Area High School.

(9) Mother has a son, Philip, from a prior relationship. Philip is in the 12th grade at Bald Eagle Area High School.

[442]*442(10) Mother has had primary physical custody of Philip for much of Alex’s life, so that until recently, Alex and Philip lived together most of the time. Philip went to live with his father in the spring of 2008.

(11) Father has two adult daughters from a prior relationship.

(12) Alex is healthy, as are both of the parties.

(13) The parties separated on or about September 22, 2008. Wife thereafter filed a petition to Centre County no. 2008-4135 under the Protection From Abuse Act on September 26,2008, and a modified and continued temporary PFA order was entered on October 16, 2008, by stipulation of the parties. As part of the stipulated order, Mother agreed to drop the temporary PFA order no later than three months after the entry of a final decree in divorce and/or the equitable distribution was completed. There were no allegations of abusive behaviors by Father against Alex.

(14) Mother filed an action in divorce in the Court of Common Pleas of Centre County, Pennsylvania on October 2, 2008.

(15) An individual by the name of Mike Bower has been staying overnight at Mother’s residence. Mother denies that she and Mr. Bower are involved in an intimate relationship, but instead claims that he is staying with her as a friend who needs her to care for him after an operation.

(16) When the parties separated, Father moved to his parents’ three-bedroom home in Fleming, Centre County, Pennsylvania, and he continues to reside there. [443]*443The home is on approximately six acres of ground. Father would like to purchase a trailer, but is unable to make any financial plans until the equitable distribution of the parties’ property is resolved pursuant to the divorce.

(17) Father has a high school education and is employed as a miner with Graymont, where he has worked for 11 years.

(18) Father works swing shift, so one week he works the 6 a.m. to 2 p.m. shift, and the next week he works the 2 p.m. to 10 p.m. shift.

(19) While Mother claims to be employed from 6:45 a.m. to 2:45 p.m., she testified that she is receiving no hours at the present time.

(20) Mother has a high school education and is trained as a licensed practical nurse through the Central Pennsylvania Institute of Science and Technology.

(21) When Alex was young, Mother was not employed and was the child’s primary caretaker.

(22) In the past, Alex has been an average student. He is doing poorly in the seventh grade, and has received incompletes in some of his classes.

(23) Mother has taken steps, including obtaining internet access and a second set of textbooks from Alex’s school, so that she may monitor his academic progress and assist him with his homework and assignments.

(24)As of the time of the hearing, Alex was improving in his attitude toward academics and recently received a S.T.A.R. award in school.

[444]*444(25) Mother assisted Alex with becoming a member of the swim team in summer 2008, and took him to his daily swim practices and weekly swim meets.

(26) Alex is now participating in the track program at Penns Valley Area High School.

(27) Prior to the parties’ separation during the summer of 2008, during the weeks when Father was on the 2 p-.m. to 10 p.m. shift, Father would leave for work several hours early, rather than spending time with Alex.

(28) Alex’s maternal grandmother, Carol Solt, lives in Bellefonte, is very involved in his life, and involves Alex in various activities, including camping. In addition she attends Alex’s extracurricular activities.

(29) Alex’s paternal grandparents, in whose residence Father resides, are 67 years of age and are both retired.

(30) They would be available to care for Alex when Father works the night shift. Alex’s grandfather has been diagnosed with cancer, but is currently doing well.

(31) Alex’s paternal grandmother does not drive.

(32) Alex has a good relationship with all of his grandparents.

(33) Alex has his own bedroom in both residences.

(34) Mother’s activities with Alex include riding a four-wheeler with him and going camping. Mother lets Alex drive the four-wheeler at her house and she reports that she supervises Alex from the house by watching him through a window.

[445]*445(35) Father has serious concerns about Alex being permitted to drive the four-wheeler on his own. Father believes that Mother’s four-wheeler is much too big for Alex’s age and size and that an accident would seriously injure or even kill Alex, particularly if the four-wheeler turned over on him. Father showed the court a video segment that Alex sent him on his cell phone, riding the four-wheeler in his mother’s driveway.

(3 6) Father and Alex enj oy hiking, fishing and hunting together. They also spend time visiting with relatives, many of whom live in the area.

(37) If Father’s request for primary custody of Alex is granted, Alex would need to change from the Penns Valley School District to the Bald Eagle Area School District where his half brother is enrolled.

(38) The court interviewed Alex in chambers. Alex clearly loves both of his parents and did not explicitly state that he wanted to live with one parent or the other.

CONCLUSIONS OF LAW

(1) The paramount concern of the court in any custody matter is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

(2) That which constitutes the best interest of a child is a fact-specific, case-by-case analysis of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Sawko v. Sawko, 425 Pa. Super.

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Bluebook (online)
8 Pa. D. & C.5th 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherite-v-witherite-pactcomplcentre-2009.