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COMMONWEALTH EX REL. SWANSON v. BARRY. (09/13/62)

September 13, 1962

COMMONWEALTH EX REL. SWANSON, APPELLANT,
v.
BARRY.



Appeal, No. 228, Oct. T., 1962, from order of County Court of Philadelphia, June T., 1961, No. 10796 H.C., in case of Commonwealth ex rel. Mary Helen Swanson v. Roy Joseph Barry. Order affirmed.

COUNSEL

Daniel Marcu, for appellant.

Paul Leo MeSorley, for appellee.

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

Author: Flood

[ 199 Pa. Super. Page 246]

OPINION BY FLOOD, J.

In this proceeding a mother seeks for the second time to gain custody of her two daughters, Kathleen Barry, born November 1950 and Allison Barry, born May 1955. Her original petition was denied in an order dated October 19, 1959, from which no appeal was taken. The present petition alleges a change of circumstances in that the petitioner has divorced the respondent, remarried and now resides with her present husband at the Maguire Air Force Base, New Jersey, the children are now at a tender age which requires the constant care and guidance of their mother, they live in a home where they lack the proper environment, guidance and association which their welfare requires and sleep in the same room with an adult. The petition also sets forth that the mother has prepared a pleasant home for them in a good environment and has made arrangements for their proper education.

After hearing testimony in support of this petition, the court below held that the evidence of change of circumstances since the 1959 order was insufficient to warrant a change in custody.

The relatrix argues that the children were living happily with her when the appellee took them from her in 1959 and that he took them and insists on keeping them to inflict punishment on her. The matter of his taking the children from her was before the court in 1959. The court's order was adverse to the relatrix following a series of hearings at which voluminous testimony was taken. In the absence of evidence that the respondent at the present time desires to retain custody solely to punish the petitioner, this argument furnishes no reason for making a new order contrary to the 1959 order, which cannot be attacked in the petition before us: Commonwealth ex rel. Chumard v. Chumard, 168 Pa. Superior Ct. 188, 191, 77 A.2d 660, 661 (1951). See also, Commonwealth ex rel. Crawford

[ 199 Pa. Super. Page 247]

    that they should be committed to her care and custody unless compelling reasons appear to the contrary: Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 166 A.2d 60 (1960). However, compelling reasons may require the mother's right to give way to the best interests of the children: Commonwealth ex rel. Kudack v. Sabo, 198 Pa. Superior Ct. 161, 181 A.2d 921 (1962). Here Judge BROWN found compelling reasons for continuing the custody in the father.

While the mother has been divorced from the father since the 1959 hearings and has now married Sergeant Swanson, in order to marry her, Sergeant Swanson divorced his former wife and left in her custody two minor children whom he is obligated to support. He earns about $400 to $425 per month, but pays rent of $96.90 for his quarters on the base. Mr. Barry earns about $120 per week.

While the petitioner's home is adequate, this alone is not sufficient ground for transferring custody to her in view of the good experience of the children in the home with their father, and the other factors in the case. One of these factors is that the stepfather, the husband of the relatrix, is a career serviceman in the armed forces of the United States, and, although he has been stationed at the ...


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