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COMMONWEALTH EX REL. MAINES v. MCCANDLESS (03/16/54)

March 16, 1954

COMMONWEALTH EX REL. MAINES
v.
MCCANDLESS



COUNSEL

Lee C. McCandless, Butler, for appellant.

Charles E. Dillon, Butler, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, Jj.

Author: Wright

[ 175 Pa. Super. Page 159]

WRIGHT, Judge.

This case involves a habeas corpus action instituted by Catherine S. Maines, a resident of Florida, against her former husband, Dean L. McCandless, a resident of Pennsylvania, to obtain custody of their minor child, Mary Catherine McCandless. Custody was awarded to the mother, subject to certain visitation rights. The father then appealed to this court. The mother was subsequently directed by the court below to file a compliance bond. We are informed that she has done so, and that the child is presently with the mother.

The parties were married in Florida on July 18, 1947, and Mary Catherine was born on September 22, 1948. At the time of the marriage, appellee had been married twice previously, both prior unions having been terminated by divorce. A daughter was born to the first marriage, which child was thirteen years old at the time of the hearing. During their married life, the parties resided in Bradenton, Florida, the home of the wife's parents. Her father is a farmer and fruit grower. Her mother is a teacher in the Bradenton High School. Appellant's parents operate a tourist camp there during the winter months. In the summer of

[ 175 Pa. Super. Page 1601951]

, appellant returned to his native home in Pennsylvania and has since resided in this state. In August of that year, he went to Florida, took the child, and started back to Pennsylvania. Appellee thereupon had a non-support warrant issued, by virtue of which appellant was apprehended in Valdosta, Georgia. Appellee and her attorney went to Valdosta where, with appellant and his attorney, a separation agreement was executed, providing for a property settlement and the custody of the child. The parties then returned to Bradenton where appellee filed a suit for divorce. The appellant appeared in this action and was represented by counsel.

The final decree of the Circuit Court of Manatee County Florida, dated September 7, 1951, sets forth '* * * that the Complainant is a fit and proper person to have the general care, custody and control of the minor daughter of the parties, namely, Mary Catherine McCandless: that the parties have heretofore entered into a valid Separation Agreement regarding the custody of the said minor child, her support, and the property of the parties, which said Agreement the Court finds reasonable and herewith approves, and it is therefore further * * * Ordered, Adjudged and Decreed, in accordance with the said Separation Agreement, that the Complainant, Catherine S. McCandless, shall have the general care, custody and control of the minor daughter of the parties, namely, Mary Catherine McCandless: that the Defendant, Dean L. McCandless, shall have the right to have the said daughter visit him at his separate home during three (3) months of each summer and for one (1) week during or about the Christmas vacation of each year, provided, however, that the Defendant shall be required to furnish transportation and supervision of and for the said child to and from the home of the Complainant * * *'

[ 175 Pa. Super. Page 161]

On January 11, 1952, the appellee married Robert Earl Maines and presently resides with him in Jacksonville, Florida. To this union a son was born of October 19, 1952. Appellant has not remarried. He is employed in a cabinet shop in Evans City, Butler County, Pennsylvania. He rooms and boards with a reputable older woman, who cares for the child while the father is at work. At the conclusion of the child's visit to Pennsylvania in the fall of 1952, appellant refused to return her to the mother.

The applicable legal principles were considered in the recent case of Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437, and need not be here restated at length. In brief, we regard the findings of fact made by the foreign court as established. The question of custody is then subject to our independent determination on the basis of those facts, together with any change in circumstances which may have occurred since the foreign decree. The governing criterion is the welfare of the child under the conditions presently existing. Weight is to be given to the fact that the parties appeared before the hearing judge, who had full opportunity to pass upon their ability and character. In this connection, the Supreme Court has said that our broad power of review under the Act of 1917, P.L. 817 ยง 1, ...


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