John N. Gazetos, Lee C. McCandless, Luther C. Braham and Galbreath, Braham & Gregg, all of Butler, for appellant.
Willis A. MacDonald, A. R. Cingolani, Butler, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, and Arnold, JJ.
[ 168 Pa. Super. Page 218]
In this habeas corpus proceeding the custody of Judith Jinkner, now aged 7 years and 10 months, is being sought by her mother, Mrs. Gayle Haller, and by Mrs. Haller's mother, Mrs. Lillie B. Hanna and her husband, Captain William R. Hanna.
The cause was tried in the Court of Common Pleas of Butler County on September 5, 1949, and an order was entered on November 12, 1949, awarding custody to the Hannas until the end of the school year, at which time the child was to be sent to live permanently with her mother and stepfather in Washington, D. C. The order provided that in the meantime Judith spend school vacations with her mother, and there was compliance with this phase of it. Toward the close of the school year Mrs. Hanna and her husband (hereinafter referred to as the grandparents) presented a petition for an opening of the order of November 12, 1949. On June 12, 1950, the court granted a rule on the mother to show cause why the order should not be opened and the case reconsidered 'in the light of facts and circumstances that have arisen since the original hearing and Order of Court'. After hearing, the trial judge, on June 29, 1950, affirmed the order allowing the mother permanent custody of the little girl 'in time to enter public school at the fall term', and the grandparents have appealed from this affirmance.
[ 168 Pa. Super. Page 219]
The natural parents are divorced, and each has since remarried. Gayle Haller (then Jinkner), after separation from the child's father, Albert Jinkner, in 1944, went to the home of her mother and step-father in Washington, Pennsylvania, taking with her her then-one-year-old daughter Judith. In the fall of 1944 Captain Hanna was transferred to Butler, where he is in charge of the Pennsylvania State Police barracks, and Gayle and Judith Jinkner moved with them and continued to reside with them. Mrs. Jinkner (now Haller) obtained employment at Deshon Hospital, and the care of the child during the hours her mother was at work was left to the grandmother. In August 1948, difficulties developed between Captain Hanna and Mrs. Jinkner, which resulted in the latter's withdrawal from the Hanna home. She moved to Washington, D. C., where she obtained employment, leaving Judith with her grandparents. Arrangements were made whereby the $40-a-month maintenance for the child, voluntarily provided by her natural father, was turned over to the Hannas. After divorcing Jinkner, the mother in June 1949 married Captain Ralph Haller of the Medical Department of the U. S. Army, stationed in Washington, D. C. The Hallers then made an effort to have Judith come to live with them but were unsuccessful, Captain Hanna ejecting Mrs. Haller from his home in July 1949, and Mrs. Haller instituted these proceedings.
No question is raised as to the moral fitness of either of the parties to have custody of the child, nor as to financial ability or willingness to furnish a good home for her. On cross-examination, Captain Haller testified that he considered the surroundings under which the child is now living 'more than adequate' but in reply to the question, 'She has everything a girl would want?' Answered, 'With the exception of the love of a mother.' He testified that their home in a large apartment building in Washington is 'very comfortable',
[ 168 Pa. Super. Page 220]
that there are other children living in the building, that there are school and recreational facilities nearby, that he has been in Army service 'over 19 years', and felt that his income and future employment are sufficient to care for his wife and Judith, and that he and his wife 'even before we were married' contemplated bringing Judith to live with them and have plans for remodeling the apartment to ...