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07/28/97 K.W.B. v. E.A.B.

July 28, 1997


Appeal from the Order in the Court of Common Pleas of Clarion County, Family Division, No. 485 CD 1996. Before GREINER, J.

Before: Beck, J., Tamilia, J., and Olszewski, J. Opinion BY Tamilia, J. Beck, J., concurs in the result.

The opinion of the court was delivered by: Tamilia


Filed July 28, 1997

Appellant/father presents this appeal from the September 4, 1996 Order awarding primary physical custody of the parties' children to appellee/mother.

The parties to this action were married in 1982 and had two children, K.M.B., born on April 1, 1983, and J.E.B., born on October 31, 1986. The parties separated in 1989 and the children remained with appellee, who remarried in 1991. Also in 1991, appellee, with her new husband and the children, returned to Butler County, the parties' pre-separation county of residence. Appellant relocated to Venango County. From 1991 to 1995, the children attended school in the Butler School District. During this period, K.M.B. was diagnosed with attention deficit disorder. On March 6, 1995, appellant filed, in Butler County, a petition for modification in which he requested primary physical custody of the children. Pursuant to the petition, the court ordered a custody evaluation, which was conducted by Andrew Koffman, Ph.D., through the Irene Stacy Clinic in Butler. Following his evaluations of the parties, their new spouses and the children, Dr. Koffman filed an extensive report in which he made the following significant Conclusions:

This evaluator agrees with the position of [appellant and his wife] which is that they can provide a more stable environment for the children than can [appellee and her husband]. Certainly there is less interpersonal pathology in [appellant's] household than is apparent in [appellee's] household, and it appears that [appellant and his wife] have been more supportive of the children's relationship with their mother than the other way around.

At least to some extent, the blame for the children's interpersonal difficulties must be assigned to the rather toxic relationships within [appellee's] household. [Appellant's] family appeared to function more effectively than did [appellee's] family when each was observed by the evaluator. All of these concerns weigh in favor of a transfer of custody from [appellee] to [appellant].

(R.R. at 268-269, Exhibit filed 2/14/96.) Based upon these Conclusions, Dr. Koffman recommended that "primary physical custody might be transferred from [appellee] to [appellant] for a period of a year, during which time it will be possible for everyone to assess the effect that this has on the children." (R.R. at 269.)

In November of 1995, appellee, with her new husband and the children, relocated to Clarion County and the children were enrolled in the Union School District. On April 9, 1996, following the submission of Dr. Koffman's report, a custody mediation was held in Butler County. Essentially endorsing Dr. Koffman's Conclusions, the mediator recommended that the parties share physical custody through the summer of 1996 and that father be awarded primary physical custody for the 1996-97 school year. The Butler County Court of Common Pleas approved this recommendation by Order dated April 18, 1996. The Order also transferred jurisdiction of the case to Clarion County, as neither party resided in Butler County at the time it was entered.

On July 15, 1996, appellee filed exceptions to the Order in Clarion County. She also filed a petition for special relief in which she agreed to the custody transfer of J.E.B. to appellant, on the basis that this was consistent with J.E.B.'s wishes. However, appellee requested an emergency hearing on the issue of whether K.M.B. should stay with her. In support of this request, appellee averred that K.M.B. did not want to live with appellant and that the Union School District was addressing K.M.B.'s special educational needs. Hearings were held on appellee's exceptions on August 26 and August 30, 1996. K.M.B., the first witness to testify at the hearing, stated that he wished to remain with appellee (N.T., 8/26/96, p. 12). The next witness, J.E.B., expressed a preference to live with appellant (N.T. at 41). Dr. Koffman also testified at length concerning his evaluations of the parties, their spouses and the children. He reiterated his recommendation to the Butler County Common Pleas Court "that the children be transferred from the custody of [appellee] to [appellant] for a period of a year." (N.T., 8/30/96, p. 17.) Dr. Koffman, who was the only expert to testify, supported this recommendation on the following basis:

My strong view is that [appellant and his wife] are better situated to provide these children a stable interpersonal environment than are [appellee and her husband]. It is my view that since [appellee] has been the parent who has had primary physical custody of these children all along, it is therefore primarily her responsibility to ensure that the children in her charge receive appropriate and adequate treatment; that they be in a stable environment and all those kinds of things we hope for children who need mental health assistance. It's my view that she has not been able to provide that and is not well situated to provide it, largely in view of the rather significant interpersonal pathology in the home.

It's my view that while [appellant and his wife] also have their difficulties and are not without some emotional and/or interpersonal difficulties, that there is a huge difference between the two households in that regard. And it is my view that these children need a more stable, healthy environment that they have been given up to now.

(N.T. at 18-19.) Dr. Koffman further stated that his recommendation was based upon "the degree to which [appellee's husband] had an unusually negative relationship with the children [and] his ineffectiveness and his really toxicity in interacting with the children." (N.T. at 42.) Finally, Dr. Koffman noted that appellee and her husband "spent a fair bit of time trashing father, making negative statements, one after the other about father, and encouraging the ...

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