Zalenko v. White

OLSZEWSKI, Judge. Following nine years of marriage, during which one child was born, Paula and Frank White separated and ultimately divorced. A 1994 court-approved custody agreement granted Paula primary physical custody of the couple’s son, Daniel. Visitation was provided to Frank on alternating weekends, one weekday evening per week, specified holidays and five weeks per summer. At the time that the custody and visitation agreements were entered into, both Paula and Frank lived in Wayne County, Pennsylvania. In July of 1996, Paula married Daniel Za-lenko, a construction site supervisor at-New Enterprise Stone and Lime Company. Paula was also employed at New Enterprise as a project office manager. Although temporarily employed in Wayne County, Mr. Zalenko owned a permanent residence in Bedford County. Several months earlier, New Enterprise had informed Mr. Zalenko that he was to be relocated to Bedford County, a three and one-half hour drive from Wayne County. Additionally, Paula was informed that her current position in Wayne County would be terminated after 1997, but that a permanent office manager position was available in Bed-ford County. Since both her job and her new husband were relocating to Bedford County, Paula filed a petition for relocation seeking modification of the 1994 custody order in the Court of Common Pleas of Wayne County. As an alternate custody and visitation arrangement, Paula suggested ■ that she retain primary physical custody of Daniel and that Frank’s visitation be modified to allow Daniel to spend one weekend per month, specified holidays and the entire summer vacation, excluding the first and last weeks, with his father. Following the appointment of a special master, hearings were held relative to the relocation petition on July 22 and August 6, 1996. On August 27, 1996, the Master filed his report and recommendations, wherein, inter alia, he denyed Paula’s relocation petition. Both parties filed exceptions to the report and, on October 2, 1996, oral argument was heard thereon. By Order dated November 5, 1996, the Honorable Robert J. Conway approved that portion of the Master’s report recommending that' the petition for relocation be denied. In denying the relocation petition, both the Master and the trial court applied the three-pronged test developed by this Court in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990). Therein, we stated that, while the overriding consideration in deciding whether relocation should be permitted is the best interests of the child, special attention should be accorded to the following three factors: (1) the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; (2) the integrity of the motives 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 visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber, 400 Pa.Super. at 184-185, 583 A.2d at 439. See also Gancas v. Schultz, 453 Pa.Super. 324, 331, 683 A.2d 1207, 1210 (1996); Vineski v. Vineski, 450 Pa.Super. 183, 186-187, 675 A.2d 722, 724 (1996). Additionally, with respect to the first factor enunciated, we held that “when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside.” Gruber, 400 Pa.Super. at 185, 583 A.2d at 439. Finally, we stated that, in considering the best interests of the minor children, the court must “focus on the primary custodial family.” Gruber, 400 Pa.Super at 183, 583 A.2d at 438. See also Vineski, 450 Pa.Super. at 187, 675 A.2d at 724. After applying the facts of the instant matter to the Gruber test, the trial court found that: (1) the proposed move would substan229 Rally improve Paula’s quality of life; (2) the parties’ motives were pure; and (3) the alternate visitation schedule proposed by Paula would, in the event the relocation was permitted, be workable. Slip op., 11/5/96 at 7-8. Nonetheless, holding that “[t]his Court cannot find any positive benefit to Daniel, individually, in moving to Bedford County,” the relocation petition was denied. Id. at 7 (emphasis added). As stated previously, this Court has held that a “child’s best interests will be indirectly but genuinely served” when an anticipated move is likely to substantially enhance the quality of life of the custodial parent. Gruber, 400 Pa.Super. at 183, 583 A.2d at 438. The importance of this derivative benefit was re-emphasized by this Court in the recent case of Kaneski v. Kaneski 413 Pa.Super. 173, 604 A.2d 1075 (1992). Factually, Kaneski involved the appeal of the father of three minor children who was contesting a trial court order permitting appellant’s former wife to relocate outside of the state. The basis of the appeal was that the lower court erred in allowing the relocation because there would be no “distinct and separate” advantage to the children resultant from the move. Kaneski 413 Pa.Super. at 178, 604 A.2d at 1077. Rather, appellant argued, his former wife had only proven that the move would substantially benefit her life. Holding that “Appellant’s argument that the move would not benefit the children misinterprets the holding of Gruber,” this Court readily rejected the argument that the proponent of relocation needs to show an independent advantage flowing to the minor children which is distinct from the benefits found to inure to the petitioning parent. Kaneski 413 Pa.Super. at 180, 604 A.2d at 1078. Rather, citing Gruber with approval, this Court held that “indirect benefits flow to the children” of the custodial parent benefiting from a proposed move. Id. Since the facts underlying the instant appeal, and the legal issue presented therefrom, are so comparable to those of Kaneski we hold that the trial court committed an error of law in concluding that, although Paula would benefit substantially from the move, Daniel would not. Moreover, because the court found that the remaining prongs of the Gruber test were satisfied; that is, the parties’ motives were pure and an alternate, feasible, visitation schedule was available, we hold that the court erred as a matter of law in denying the petition for relocation. Order reversed; jurisdiction relinquished. Dissenting Opinion by CAVANAUGH, J.