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COMMONWEALTH EX REL. WERT (ET AL. v. LONG. (12/14/61)

December 14, 1961

COMMONWEALTH EX REL. WERT (ET AL., APPELLANT),
v.
LONG.



Appeal, No. 319, Oct. T., 1961, from order of Court of Common Pleas of Warren County, May T., 1961, No. 43, in case of Commonwealth ex rel. Robin Wert and John Wert, by their father, John C. Wert, v. Donna Long. Order affirmed.

COUNSEL

Harold S. Hampson, for appellant.

Anthony H. Chambers, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 196 Pa. Super. Page 633]

OPINION BY MONTGOMERY, J.

This is an appeal from an order granting custody of two minor children, Robin Wert and John Wert, to their mother, Donna Long, the appellee. The action was commenced by a petition for a writ of habeas corpus in the Common Pleas Court of Warren County which directed the appellee to produce the two minor children and to show cause why the said children should not be delivered into the custody of their father, the appellant.

Prior to the hearing as to custody, there was a legal argument as to which party had the burden of proof. The lower court ruled that custody had been restored to the father and that the mother had the burden of showing that he is not the proper person with whom the children should live. Testimony in support of the mother was given by: her present husband; their landlady, who lives next door and is in the mother's house

[ 196 Pa. Super. Page 634]

    every day; a neighbor who resided ten houses away, who has children the same age as the Wert children and saw the Wert children almost every day; and the minister of the church attended by the mother and her present husband.

Those who testified in support of the father know the parties before their marriage and afterward, until their separation, but knew nothing of the mother's present home in Bradford, Pennsylvania.

The testimony shows that the parties were married August 21, 1955. They lived several different places and finally in a house in Clarendon which John C. Wert acquired from his father, and where he still lives. He had always been a hard worker, holding down two jobs, but she complained that he only came home to eat and sleep. He testified that she quarreled with him, threw things at him, and that he preferred working to going home. She left him three times before the final time on September 21, 1958. She testified that three or four months after their marriage he started coming home drunk, beat her up, and she left him, came back, and subsequently after quarrels left him again and only returned after discovering she was pregnant. After the birth of the second child, she arranged to have Virginia Eck take care of both children. That Virginia Eck was proficient in her duties and that she thought highly of the children is undisputed.

In September 1958, the mother spoke to her husband's parents, who agreed to see that the children were well cared for until she could do something about it. She left home to live with Frank Long, an acquaintance of whom she had become very fond. They have lived together ever since and have had two children. Appellant divorced her in July 1960, and she married Frank Long the following September. She ...


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