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COMMONWEALTH EX REL. MANN v. MANN (07/17/56)

July 17, 1956

COMMONWEALTH EX REL. MANN
v.
MANN, APPELLANT.



Appeal, No. 30, April T., 1956, from order of County Court of Allegheny County, 1947, No. 2381, in case of Commonwealth ex rel. Ruth E. Mann v. Robert Lee Mann. Order affirmed.

COUNSEL

Paul R. Butler, for appellant.

George M. Weis, with him Weis & Weis, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Wright

[ 181 Pa. Super. Page 440]

OPINION BY WRIGHT, J.

This proceeding involves a controversy between divorced parents concerning the custody of their nine year old son. The County Court of Allegheny County acquired jurisdiction because of a prior order for the child's maintenance. Act of March 19, 1915, P.L. 5, 17 PS 653.And see Commonwealth ex rel. Moss v. Moss, 159 Pa. Superior Ct. 133, 47 A.2d 534. After hearing on August 26, 1955, and rehearing on September 6, 1955, an order was entered awarding "full" custody of the child to the mother. The father has appealed.

Robert L. Mann, appellant, married Ruth Dennison in February 1946, when both were seventeen years of age. George Daniel Mann, the subject of this proceeding was born on September 5, 1946. The parties separated in November 1947, the mother retaining custody of the child. An order of $30.00 per month for the child's support was entered on December 4, 1947. The marriage was dissolved by divorce in January 1948. On June 20, 1950, the support order was reduced to $5.00 per week and all arrearages were cancelled. For several years after the separation the mother lived with an aunt and uncle, Mr. and Mrs. E. G. Ballard, who had reared her since infancy. On May 7, 1951, the mother married John S. Baird, and the child remained with the Ballards under the mother's control. To her union with Baird, the mother has three children. At least following his discharge from the service in 1952, the father was permitted to take the child every other Sunday, and for additional periods during the summer. On July 31, 1953, the father remarried, and there is one child to his second union. On Sunday, August 7, 1955, while the child was visiting its mother, the father took the child and refused to bring him back.

[ 181 Pa. Super. Page 441]

However, as a result of the custody proceeding, the child was returned and has since remained with the mother.

The controlling legal principles are well settled, the governing criterion being the welfare and interest of the child involved: Commonwealth ex rel. Donie v. Ferree, 175 Pa. Superior Ct. 586, 106 A.2d 681; Nauman Adoption Case, 177 Pa. Superior Ct. 317, 110 A.2d 925. Unless compelling reasons appear to the contrary, a child of tender years should be committed to the care and custody of its mother by whom the needs of the child are ordinarily best served: Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437; Commonwealth ex rel. Lamberson v. Batyko, 157 Pa. Superior Ct. 389, 43 A.2d 364. Appellant does not assert that the mother has not established a proper home for the child. Essentially, he raises three other questions which we will briefly discuss.

Appellant's first contention is that the mother is morally unfit because of improper relations with her second husband prior to their marriage. The record discloses that, while the mother was keeping company with Baird, she had a miscarriage, and that she was pregnant at the time of her marriage to Baird. However, there is no evidence of any improper behavior since, and no other attack upon the mother's present qualifications as a parent. In Commonwealth ex rel. Swartzwelder v. Swartzwelder, 162 Pa. Superior Ct. 366, 57 A.2d 610, Cited by appellant, the child had lived with the father since birth, and the mother appeared "to be motivated more by a hostile ...


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