August 7, 1954
COMMONWEALTH EX REL. HUBBELL
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]
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.
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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 what has been said by the learned court below, but the ultimate responsibility rests with us to determine from all the evidence who should have the care and custody of the child.' And see Commonwealth ex rel. Kreiling v. Kreiling, 156 Pa. Super. 526, 40 A.2d 704.
The governing criterion in proceedings of this nature is the welfare of the children involved. Commonwealth ex rel. Haller v. Hanna, 168 Pa. Super. 217, 77 A.2d 750; Commonwealth ex rel. Donie v. Ferree, Pa. Super., 106 A.2d 681. We have
[ 176 Pa. Super. Page 195]
consistently held that the needs of children of tender years are best served by their mother. Commonwealth ex rel. Gates v. Gates, 161 Pa. Super. 423, 55 A.2d 562; Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437. Considered in the light of these tests, the order of the lower court is palpably erroneous and should be reversed.
Dorothy A. Hubbell, appellant, is the mother of three little girls now aged respectively, six, four, and two years. These children have resided with their mother continuously since birth. There is not one scintilla of testimony in the record that the mother does not give them proper care. The fact that the mother associated with her present husband prior to divorcing the relator*fn1 is not controlling. Commonwealth ex rel. Bock v. Bock, 159 Pa. Super. 159, 48 A.2d 133. The evidence clearly establishes that she is thoroughly devoted, affectionate, and capable. The children are well fed, well clothed, and in excellent physical condition. The hearing judge commented that the three children appeared to be well cared for. Novertheless, he awards custody of two of them to an unfit father who is emotionally unstable, subject to spells of violence, addicted to the excessive use of alcohol, fails to pay his debts, and is presently unemployed. The father did not contribute any support for almost two years, evidenced no paternal interest whatsoever, and in effect abandoned the children. See Clark Adoption Case, 175 Pa. Super. 68, 103 A.2d 470.
The reasoning of the lower court is based largely upon the fact that the children must live in an apartment above a taproom operated by their mother's present husband. But this court certainly cannot say that a mother should lose her children because she marries
[ 176 Pa. Super. Page 196]
the proprietor of a taproom. The apartment in question is modern in every way and has a separate entrance from outside the building. It is harmful to remove children summarily and permanently from agreeable surroundings and associations incident to the only parental control and supervision they have ever known. Davies Adoption Case, 353 Pa. 579, 46 A.2d 252. The suggestion in the opinion of the lower court that 'this home may lack the desirable characteristic of continuity and stability' is unfair speculation not supported by the testimony. Nor is it consistent to separate the children and thus effectively destroy their relationship as sisters growing up together. See Commonwealth ex rel. Reese v. Mellors, 152 Pa. Super. 596, 33 A.2d 516.
Finally, relator is actually not seeking custody for himself. The children are to live in the home of relator's mother and step-father in St. Petersburg, Florida. The bedrooms in this home are already occupied and the children would have to sleep with with a Miss Bently. The relator's mother is regularly employed. She and her husband are strangers to the children. No independent investigation was made of their home or of their financial ability. The conclusion of the lower court is based in part upon statements made by relator's mother not of record, and considered by the court in violation of our admonition in Commonwealth ex rel. Oncay v. Oncay, 153 Pa. Super. 569, 34 A.2d 839; and Commonwealth ex rel. Balick v. Balick, 172 Pa. Super. 196, 92 A.2d 703. This circumstance in itself requires a reversal.
*fn1 According to the testimony, relator was at least equally guilty.