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JOSEPH EUGENE SNARSKI v. EDWARD KRINCEK AND DELORES KRINCEK (03/15/88)

filed: March 15, 1988.

JOSEPH EUGENE SNARSKI, JR., APPELLANT,
v.
EDWARD KRINCEK AND DELORES KRINCEK, HIS WIFE, APPELLEES



Appeal from the Order entered on May 8, 1987, in the Court of Common Pleas of Luzerne County, Civil Division, at No. 3312-C of 1983.

COUNSEL

Gifford R. Cappellini, Wilkes-Barre, for appellant.

Mark A. Peleak, Assistant Public Defender, Kingston, for appellees.

Cavanaugh, Beck and Hester, JJ. Cavanaugh, J., concurs in the result.

Author: Beck

[ 372 Pa. Super. Page 62]

This appeal arises out of a custody modification action commenced by appellees, Edward and Delores Krincek, on April 18, 1986 in the Court of Common Pleas for Luzerne County. The Krinceks are the maternal grandparents of the child in question, Joseph Edward Snarski ("Joseph"). Appellant is Joseph Eugene Snarski, Jr., Joseph's father ("the father").

Joseph was born on May 17, 1979. Shortly before Joseph's birth, his father and mother separated and his mother went to live with her parents, appellees here ("the grandparents"). Shortly after Joseph's birth, his parents were divorced. Joseph and his mother lived with the grandparents until August 5, 1983 when Joseph's mother tragically died. The father then sought custody of Joseph which was granted by order dated August 2, 1984. The grandparents were granted partial custody rights as to Joseph. At the time of the entry of the August 2, 1984 order granting custody to the father, the father was remarried, had another son by his second wife and was in military service stationed in Florida. In December 1984, the father was

[ 372 Pa. Super. Page 63]

    transferred to England and took up residence there with his wife and both children. Approximately one year later, in February 1986, the father and his second wife separated and the wife left England to return to Florida, her parents' home. She took both children with her, with the father's consent. Shortly thereafter, the wife contacted the grandparents and told them that if they could obtain an order giving them custody of Joseph, they could have him. Accordingly, on April 18, 1986, the grandparents filed a petition for the immediate physical custody of Joseph and for modification of the prior custody order. On that day the trial court entered an ex parte order giving them temporary physical custody and requiring that notice of the order be given to the father.

On June 12, 1986 the father filed a Motion for Special Relief requesting that he retain legal custody of Joseph and alleging that he had attempted to secure leave from the armed forces immediately upon hearing about the fact that Joseph was now with the grandparents. In response to this Motion, the trial court entered an order granting the father specific periods of partial custody of Joseph. The father was discharged from the military and returned to Pennsylvania in August 1986.

After numerous other interim orders regarding continuances, hearing dates and grants of periods of partial custody were entered, on January 26 and 28, 1987 a full custody hearing was held. On April 1, 1987, the trial court interviewed Joseph, and on May 8, 1987 the court entered an order awarding custody of Joseph to the grandparents, subject to partial custody rights granted to the father. This appeal is from the May 8, 1987 order.

[ 372 Pa. Super. Page 64]

The trial court has developed an extensive record in this matter and has provided us with a comprehensive opinion in support of its May 8, 1987 order. In doing so, the trial court has fully comported with our longstanding requirement of a full record and complete trial court opinion in custody matters so as to enable us to conduct the searching review we are charged with making in such cases. English Page 64} v. English, 322 Pa. Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa. Super. 36, 446 A.2d 1323 (1982). We provide the following lengthy synopsis of the trial court's opinion because we not only agree with the conclusions reached, but also because we regard the court's analysis of the facts and law to be complete, convincing and correct.

First, the court recognized that its standard for decision of the issue before it differed greatly from the usual custody case involving an initial determination of custody between two parents. This is a case involving modification of an existing custody order and is a dispute between one parent and grandparents. The effect of these distinctions on the applicable legal standard, in the view of the trial court, was to greatly increase the burden on the grandparents to show why they should now have custody of Joseph. Citing In Interest of James John M., 333 Pa. Super. 417, 482 A.2d 637 (1984), the trial court recognized that the father's right to custody of his child could only be forfeited if there were convincing reasons why the child's best interests would be served by an award to the grandparents.

The court also took cognizance of the fact that in an action seeking modification of a existing custody order, the court must be reluctant to grant the modification in the interest of preserving stability in the child's life. The order should be modified only if the party seeking modification demonstrates that the circumstances affecting the child's welfare have substantially changed since the entry of the original order. Trial Court Opinion at 31, citing Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729, aff'd, 492 Pa. 183, 423 A.2d 333 (1980).

Thus, the court saw its task as follows. First, it had to determine whether there were changed circumstances warranting the reconsideration of the existing custody order. The burden of showing such was on the grandparents. Second, assuming that changed circumstances were demonstrated, the court then had to determine which of the competing parties should have custody in order best to

[ 372 Pa. Super. Page 65]

    serve Joseph's interests. As to the latter determination, the court noted that in a case involving two parents, each shared an equal burden on this issue. However, in the instant case, the court saw the grandparents as having the increased burden of "overcoming the prima facie right of a father to custody." Trial Court Opinion at p. 32.

Carefully applying these standards to the case before it, the trial court first analyzed whether there were relevant changed circumstances. The court noted that its initial award of custody of Joseph to the father on August 2, 1984 was largely based on the court's decision that the father was at that time "able to provide a complete home environment for the child." Trial Court Opinion at p. 25. The father was then married to his second wife with whom Joseph had established a good relationship. The father also had his second son, Michael, with whom Joseph had established a good sibling relationship. The court also noted that it had at that time recognized and sought to preserve the existing valuable relationship between Joseph and the grandparents by granting them partial custody in the August 2, 1984 order.

In contrast, since the August 2, 1984 order, the following changes affecting Joseph's best interests had occurred:

1. The father had moved Joseph to England and Joseph had then been returned first to Florida and then to Pennsylvania.

2. The father obstructed the grandparents' access to Joseph when he was in Florida and England.

3. The father had abdicated his parenting responsibilities as to Joseph to his second wife when the family resided in England.

4. The father permitted Joseph to be taken by the second wife from England to Florida when the father and the second wife first separated.

5. The father and his second wife had divorced.

6. Joseph is no longer in contact with either the second wife or his half-brother Michael.

[ 372 Pa. Super. Page 667]

. The father had only minimal contact with Michael.

8. The father is no longer in military service and is now unemployed.

9. The father has no home of his own and lives with his parents.

Thus, the trial court concluded that the stable loving environment to which it had committed Joseph by the original custody order no longer existed and that this constituted a change of circumstances sufficient to warrant modification of the order.

Second, the trial court found that the grandparents had succeeded in showing convincing reasons why the father's "prima facie" right to custody should be overcome and in showing that Joseph's best interests would be served by granting custody to the grandparents. First, the court noted that Joseph had lived all but one and a half of his eight years with the grandparents who have been a continuous source of stability for the child. Further, the court was convinced that since the initial award of custody to the father, he had demonstrated his inability to provide an environment for Joseph which would serve the child's best interests. The court pointed to the father's "deliberate policy" to interfere with Joseph's relationship with his grandparents, which the court had found beneficial to Joseph, and the father's tendency to act immaturely, compulsively, and without regard for convention. Next, the court credited the testimony of the father's ex-second wife that during their marriage, the father had not involved himself in either of the children's upbringing. In fact, the court noted that the father had abandoned Michael, his second son, after divorcing the second wife and saw this as further indication of the father's unwillingness or inability to parent his children. Given this behavior, the trial court did not believe the father would be a responsible parent in future. In contrast, the court saw the grandparents as having consistently provided a loving and stable environment for Joseph and as being mature, responsible and financially

[ 372 Pa. Super. Page 67]

    secure people. Thus, the court awarded custody to the grandparents and partial custody to the father.

Although our review of the trial court's serious and thorough deliberations is broad, it is not without limitation. We can explain our standard of review no more clearly than did our Supreme Court in the recent case of Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), as follows:

A broad or searching standard of review in custody matters is entirely proper. Mr. Justice Nix, now Chief Justice, writing for a plurality of the Court, stated in Commonwealth ex rel. Spriggs v. Carson, supra [470 Pa. 290, 368 A.2d 635 (1977)]:

It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parents is the best interest of the child . . . In order to insure such a focus, our law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type. Thus, an appellate court is not bound by deductions and inferences made by a trial court from the ...


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