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Gianvito v. Gianvito

June 4, 2009

AMY MARIE GIANVITO, APPELLANT
v.
RICHARD GIANVITO, APPELLEE



Appeal from the Order June 10, 2008, In the Court of Common Pleas of Beaver County, Civil Division at No. 20248 of 2006.

The opinion of the court was delivered by: Popovich, J.

BEFORE: BOWES, DONOHUE, and POPOVICH, JJ.

OPINION

¶ 1 Amy Marie Gianvito (Mother) appeals the order entered on June 10, 2008, in the Court of Common Pleas of Beaver County, that granted the custody modification petition filed by Richard Gianvito (Father), which vested in Father primary physical custody of Elizabeth Ann Gianvito (Child), the parties' minor daughter. On appeal, Mother asserts that Father failed to prove that Child's best interests would be served by shifting primary physical custody to Father. Upon review, we affirm.

¶ 2 The relevant facts of this case were set forth fully by the trial court in its Pa.R.A.P. 1925(a) opinion, filed October 22, 2008, as follows:

Initially, [Father] and [Mother] met at Western Beaver School District in Beaver County, Pennsylvania. The parties were high school sweethearts. During the beginning of their relationship, [Mother] became an integral part of the extended Gianvito family. After graduating from high school, [Father and Mother] became engaged and lived at the residence of Richard A. and Eleanor Gianvito, paternal grandparents. The parties married on September 12, 1998[,] and bought a house in Chippewa in Beaver County. After two years the parties bought their marital home from the paternal grandparents located in Ohioville, Beaver County. During the beginning of their marriage, [Mother] worked and also went to school. Father worked as a plant worker at S.H. Bell, a local company in Midland, PA. At trial, paternal grandfather testified that they developed a close relationship with [Mother] and adopted her into the Gianvito family.

On February 5, 2002, [Child] was born during the marriage of the parties. During the first 21/2 years of [Child's] life, [Mother] did not work but was a [stay-at-home] mother. Father and paternal grandparents were actively involved in rearing [Child] during [her] infancy. During this time, [Father] shared in the day to day care of [Child]. Father was a hands[-]on dad who cared daily for [Child]. Father changed diapers, bathed [Child], fed [her], and took her for medical and dental appointments. In addition, paternal grandparents were both actively involved in caring for [Child] during her infancy. At trial, no evidence was presented that established any kind of involvement of [Mother's] family with [Child] during her infancy.

In June of 2004, [Mother] went back to work full-time and returned to school to obtain a degree. At this time, [Father] had lost his job at S.H. Bell. From June 2004 to the parties' final separation of April 2006, [Father] became ["Mr. Mom"] and was the primary caretaker for [Child] during the daytime. At trial, [Father] stated how he cared for the physical needs of [Child] and developed a close relationship with her. Father explained to the [trial court] how he established a daily routine for the care of [Child] and did everything with her. The Gianvito family had a strong commitment to take care of their family members in times of need. Paternal grandparents provided needed child care for [Child] when [Mother] was working and in school at night and when [Father] worked part-time as a police officer two days a week during the midnight shift. During this time period, [Child] developed a strong bond with paternal grandparents, who she referred to as "Pap-pap" and "Gigi." Based on the efforts of [Father] and paternal grandparents, no outside child care was needed for the care of Child.

In February 2004, [Mother] and [Father] separated for 3-4 months and finally separated in April 2006. From April 2006 to January 2007, [Mother] continued to live with Child at the parties' marital home in Ohioville. During this time of separation, [Father] lived with the paternal grandparents at their residence. At trial [Father] testified that he provided care for Child at his parents home during daylight hours prior to going to work [at] midnight as a part-time police officer. Paternal grandparents continued to provide extensive daycare for Child while [Mother] worked full-time and went to school at night.

In April 2006, the parties were divorced. At trial, [Mother] testified that she did not want to continue to live at the marital home in Ohioville. The marital residence was sold in January 2007. In February 2007, [Mother] moved with Child to 430 Lee Dr., Apt. 96, Moon Twp. in Allegheny County. Mother's new 3-bedroom apartment was located in a college area. Father opposed [Mother's] move to Moon Twp., because the apartment had a college atmosphere, it was located in an area without children, and the move added additional distance causing difficulties for [Father] and paternal grandfather to continue to provide care for Child during the daylight hours.

On January 30, 2007, [Mother] filed a custody complaint requesting physical custody of Child. On March 5, 2007, [Father] filed an Answer and counterclaim requesting shared physical custody of [Child]. On March 16, 2007, the Honorable Judge Deborah Kunselman entered a proposed Order granting shared legal custody to the parents, physical custody of [Child] to [Mother] and partial custody visitation rights of every other weekend and every Tuesday and Thursday from 5:30 p.m. to 8:30 p.m. to [Father]. Under the March 16, 2007 Order, the custody exchanges occurred in Center Twp., Beaver County, and the parties shared transportation responsibility. On April 5, 2007, [Father] filed exceptions to the proposed order of March 16, 2007. In his exceptions, [Father] requested that [he] and paternal grandparents continue to care for [Child] during the daylight hours of the week. In his exceptions, [Father] requested shared custody of [Child]. On June 21, 2007, [Mother] filed a Petition for Special Relief alleging that she had relocated to Moon Twp. to be closer to her work in Moon Twp. and that the roundtrips to Center Twp. to paternal grandparents to provide child care was burdensome upon her. On June 21, 2007, the Honorable Judge Deborah Kunselman amended paragraph II A2 of the proposed order of March 16, 2007, to provide that [Father] shall have partial custody visitation rights with [Child] during the school week every Tuesday and Thursday from 5:30 p.m. to 8:30 p.m. Transportation responsibility was placed on [Father]. On October 16, 2007, [Mother] entered into a custody agreement that was adopted by the Court. This agreement provided for: shared legal custody by the parents, physical custody of the minor to [Mother], and partial custody visitation rights to [Father]. Under this agreement, [Father] had partial custody every other weekend during the school year; alternating Thursdays on weeks following weekend partial custody from after school to 7:00 p.m.; on alternating weeks that [Father] does not have a weekend from after school Monday to 7:00 p.m. Tuesday; alternating holidays; and week on/week off during [Child's] summer vacation. At the time of the agreed Order, [Father] was residing at 138 Meadow Drive, Beaver Falls (Chippewa), Beaver County, and [Mother] was residing at 430 Lee Drive, Apt. 96 Moon Twp., Allegheny County.

On March 5, 2008, [Mother] filed a Motion for Special Relief requesting permission from [the trial court] to relocate with [Child] to Greentree City, PA. On March 17, 2008, [Father] filed a petition requesting modification of the agreed Order of October 16, 2007.

Following a consolidated trial on May 27 and 29, 2008, [the trial court] issued an Order on June 16, 2008 awarding physical custody to [Father] and partial custody visitation rights to [Mother] every other weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday, every Tuesday from 5:30 p.m. to 8:30 p.m. alternating holidays; and 3 non-consecutive weeks during the summer months. The responsibility of transportation was to be shared by the parties. The pickup and ...


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