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COMMONWEALTH EX REL. HUBBELL v. HUBBELL (08/07/54)

August 7, 1954

COMMONWEALTH EX REL. HUBBELL
v.
HUBBELL



COUNSEL

Edward M. Seletz, Chester, for appellant.

Louis A. Bloom, Chester, for appellee.

Before Ross, Acting P. J., and Gunther, Wright, Woodside and Ervin, JJ.WOODSIDE

[ 176 Pa. Super. Page 193]

WOODSIDE, Judge.

This appeal involves divorced parents, each desiring custody of two of their children. In such cases there usually is no solution to the problem; the court can only choose between unsatisfactory situations. So is it here.

The burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law. Com. ex rel. Heller v. Yellin, 1953, 174 Pa. Super. 292, 297, 101 A.2d 452.

Any experienced trial judge, while conducting a hearing which involves the custody of children, is observing every act of the parties, not only to appraise the truth of their testimony, but also to evaluate their fitness to have custody of the children. An appellate court lacks this opportunity to pass upon the ability and character of the parties.

Judge Bretherick is an experienced and able member of a trial court whose sympathy for children and interest in their welfare has often been demonstrated. His opinion sets forth the facts and the reasons for the court's conclusion.

[ 176 Pa. Super. Page 194]

The appellant has not satisfied the majority of this court that the order of the lower court is erroneous or based on a mistake of law. We therefore affirm the order on the opinion of Judge Bretherick.

RHODES, P. J., and HIRT, J., absent.

WRIGHT, Judge (dissenting).

Of course I agree that Judge Bretherick 'is an experienced and able member of a trial court whose sympathy for children and interest in their welfare has often been demonstrated'. However, appeals to the Superior Court in proceedings for the custody of children are governed by the Act of July 11, 1917, P.L. 817, § 1, 12 P.S. § 1874, which provides that we 'shall consider the testimony and make such order upon the merits of the case, either in affirmance, reversal, or modification of the order appealed from, as to right and justice shall belong.' While this broad power of review does not empower us to nullify the fact-finding function of the hearing judge, Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350, it clearly indicates the intention of the legislature that we do more than merely place a rubber stamp of approval upon the action of the trial court. In the words of Judge (later President Judge) Baldrige in Commonwealth ex rel. Piper v. Edberg, 150 Pa. Super. 378, 28 A.2d 460, 462, 'We have given great weight to ...


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