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COMMONWEALTH EX REL. MITCHELL v. MITCHELL. (06/11/58)

June 11, 1958

COMMONWEALTH EX REL. MITCHELL, APPELLANT,
v.
MITCHELL.



Appeal, No. 308, Oct. T., 1957, from order of Municipal Court of Philadelphia, Domestic Relations Division No. 164508, July T., 1956, No. 9020, in case of Commonwealth ex rel. Barbara Jeanne Mitchell v. Preston Albert Mitchell. Order affirmed.

COUNSEL

Sara Duffy, with her Leon Sobel, for appellant.

John W. Dawson, Jr., for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).

Author: Wright

[ 186 Pa. Super. Page 348]

OPINION BY WRIGHT, J.

We are here concerned with a controversy between parents, who have separated, involving the custody of their two minor children. There were six hearings in the case, and the original record contains almost 800 pages. Judge GILBERT'S thoroughly considered and exhaustive opinion covers 40 printed pages. At the conclusion of the last hearing, March 22, 1957, custody of both children was awarded to the father and they

[ 186 Pa. Super. Page 349]

    have been in his custody ever since. A final order*fn1 was entered on April 29, 1957, from which the mother has appealed.

Barbara Jeanne Uber and Preston Albert Mitchell were married on October 25, 1946. They were then aged, respectively, 20 and 27 years. Barbara Christine Mitchell was born November 7, 1946, and Dannell Allen Mitchell was born December 28, 1948. The father has been a member of the United States Navy since 1939, and is presently assigned to permanent shore duty in Philadelphia. He will be eligible for retirement in August 1958, and plans to retire from the Navy at that time. The mother was employed as a payroll clerk for the Crown Laundry in Philadelphia. From the time of their marriage until their separation on June 1, 1956, the only permanent matrimonial abode of the parties was at the home of appellant's parents at 436 South 44th Street, Philadelphia. The hearing judge found that appellant was under the domination of her mother who admittedly detested her son-in-law;*fn2 that the Uber home "has been one of discord and dissension between the petitioner and her mother, and between the maternal grandparents themselves"; that appellant nevertheless preferred to stay there rather than reside in a separate home with her husband and children; and that appellant's attitude was "the controlling cause for the failure of this marriage". Dannell was satisfied to live with either parent. Barbara was definite

[ 186 Pa. Super. Page 350]

    in her preference to be with her father. The children are now living with their paternal grandparents on a farm in a district known as Greenwood, near Farmington, Delaware. Discussing this phase of the case, the hearing judge said:

"Both their home and the home of petitioner's mother in Philadelphia have been checked by representatives of this Court, as well as by the Juvenile Court of Kent and Sussex Counties, Dover, Delaware, and both have been found satisfactory as to their physical appointments. The chief physical advantage of the Greenwood home, as far as the children are concerned, is the surrounding environment which consists of open country, with ...


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