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COMMONWEALTH EX REL. GEORGE v. GEORGE (11/14/50)

November 14, 1950

COMMONWEALTH EX REL. GEORGE
v.
GEORGE



COUNSEL

Leighton R. Scott, Charles D. Hogan, and Hogan & Scott, all of Easton, for appellant.

Jacob Raub, Jr., Easton, for appellee.

Before Rhodes, President Judge, and, Hirt, Reno, Dithrich, Ross, Arnold and Gunther, Judges.

Author: Ross

[ 167 Pa. Super. Page 564]

ROSS, Judge.

This habeas corpus proceeding involves the custody of two children, Marie Ann George and George James George, now aged seven and five years respectively. Their parents are estranged, the mother (relatrix) having returned to Rhode Island, where she now resides, while the children have continued to live with respondent-father and paternal grandmother in Easton. Relatrix obtained an order in the Court of Common Pleas of Northampton County on July 6, 1950, awarding her the custody of the children, with specified privileges of visitation to the respondent. From this order respondent has appealed to this Court.

The parties were married in Providence, Rhode Island, in June 1942 and resided in that city about 15 months. Marie Ann was born during that period, and when she was about 3 1/2 months old the parties moved to Easton, where they continued to live at various addresses until their separation in July 1946. During their married life, the parties and their children lived apart from various members of respondent's family for only about a year, and it is apparent from the record that the friction which developed between relatrix and her in-laws was a contributing factor toward the separation.

The burden is upon appellant to establish that the decree of the court below is, under the evidence, manifestly erroneous or based on a mistake of law. Com. ex rel. Minnick v. Wilson, 159 Pa. Super. 230, 48 A.

[ 167 Pa. Super. Page 5652]

    d 27; Com. ex rel. Williams v. Price, 167 Pa. Super. 57, 74 A.2d 668. Of course, the paramount consideration in cases of this nature is at all times the welfare of the child, which includes its physical, intellectual, moral and spiritual well-being, and all other considerations are subordinate. Com. ex rel. Self v. Self, 153 Pa. Super. 443, 34 A.2d 263; Com. ex rel. Williams v. Price, supra. This Court is not called upon to decide which of the parents is more to blame for the present failure of this marriage. We are concerned only with the welfare of the children. Com. ex rel. Gates v. Gates, 161 Pa. Super. 423, 55 A.2d 562; Com. ex rel. Conrod v. Conrod, 165 Pa. Super. 628, 70 A.2d 433. The fundamental question, the permanent welfare of the children, is the only one that calls for discussion. Com. ex rel. McTighe v. Lindsay, 156 Pa. Super. 560, 40 A.2d 881.

No question is raised as to the moral fitness of either parent. As to financial ability and willingness to support the children: Relatrix testified that during the time in which the parties lived together, respondent's father provided them with a place to live and with clothing for the children, and this was corroborated by respondent. Relatrix testified further that she 'didn't like the idea of his father supporting the children and myself,' and wanted to be 'not dependent on his brother or father', but respondent was content to accept support from his father, being unemployed from time to time, although the war was still on and there were 'lots of jobs but he could never work at one job'. The hospital bill, when the second child was born, was paid to a large extent with money she received from her brother in the army. In answer to the question, 'Who supplied the food?' relatrix answered, 'When we first moved here his father did, but it got so with his father's mother * * * that every time I would go to the refrigerator

[ 167 Pa. Super. Page 566]

    to get food ready for the children she would start to swear and curse'; that thereafter relatrix worked and bought groceries with the money she earned, and that she cashed her insurance ...


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