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COMMONWEALTH EX REL. O'HEY v. MCCURDY (09/13/62)

THE SUPERIOR COURT OF PENNSYLVANIA


September 13, 1962

COMMONWEALTH EX REL. O'HEY
v.
MCCURDY, APPELLANT.

Appeal, No. 180, Oct. T., 1962, from order of Court of Common Pleas of Montgomery County, No. 61-363, Habeas Corpus, in case of Commonwealth ex rel. Anne C. O'Hey v. John G. McCurdy. Order affirmed.

COUNSEL

Thomas B. Moreland Porter, Jr., with him Foulke, Knight & Porter, for appellant.

William F. Fox, with him Fox, Differ, DiGiacomo & Lowe, for appellee.

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

Author: Wright

[ 199 Pa. Super. Page 23]

OPINION BY WRIGHT, J.

We are here concerned for the second time with a controversy between John G. McCurdy and Anne C. O'Hey, divorced parents, involving the custody of their minor children, presently aged thirteen, eleven, eight, and seven years. The case has a long procedural history, including two citations for contempt, and there is a voluminous record. By order dated February 8, 1961, the Court of Common Pleas of Montgomery County awarded custody to the mother, and granted liberal visitation rights to the father. An appeal by the father followed, and the order was affirmed. See

[ 199 Pa. Super. Page 24]

    sufficient basis for the requested change in custody. It should perhaps be noted that, before making the order of January 2, 1962, the hearing judge privately interviewed the four children who are the subjects of this dispute. In the words of Judge HONEYMAN: "The Court detected nothing from such interviews with the minors involved that would move the Court to change the basic custody in this proceeding".

In appeals of this nature, the burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law. Cf. Commonwealth ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 101 A.2d 452; Commonwealth ex rel. Lees v. Lees, 196 Pa. Superior Ct. 32, 173 A.2d 691. That burden has not been sustained in the case at bar. Appellant has entirely failed to demonstrate any compelling reason for modification of the original order. This matter has been accorded patient and thoughtful consideration in the court below over an extended period of time. We are all of the opinion that the existing custody status should not be disturbed.

Disposition

Order affirmed.


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