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COMMONWEALTH EX REL. META v. CINELLO (06/22/71)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 22, 1971.

COMMONWEALTH EX REL. META, APPELLANT,
v.
CINELLO

Appeal from order of Court of Common Pleas, Family Court Division, of Allegheny County, No. D-1151 of 1969, in case of Commonwealth of Pennsylvania ex rel. Robert E. Meta v. Bettie Cinello.

COUNSEL

Carl Blanchfield, for appellant.

Saul Davis, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 218 Pa. Super. Page 371]

This case involves an appeal from an order of the Court of Common Pleas of Allegheny County denying appellant partial custody and visitation rights with a child born on July 16, 1966, claimed by appellant to be his son. Appellee, the mother, has objected to visitation by appellant on the ground that her son, although born

[ 218 Pa. Super. Page 372]

    during her marriage to appellant, is actually the child of her second husband.

The lower court found that appellant is not the father of the child, and that it would be detrimental to the best interest and welfare of the child to grant visitation rights to appellant. In making this determination, the lower court acted pursuant to the order of this Court, remanding the record for a determination of these issues. Commonwealth ex rel. Meta v. Cinello, 217 Pa. Superior Ct. 94, 268 A.2d 135 (1970).

In reviewing cases involving custody of children, we give great weight to the opinion of the trial judge who had an opportunity to see and hear the parties and their witnesses. Commonwealth ex rel. Hickey v. Hickey, 213 Pa. Superior Ct. 349, 351, 247 A.2d 806, 808 (1968). See Commonwealth ex rel. Bell v. Bell, 200 Pa. Superior Ct. 646, 189 A.2d 908 (1968). However, the lower court must base its decision, particularly as expressed in its opinion, on sufficient factual information duly admitted into evidence and contained in the record. Commonwealth ex rel. Hickey v. Hickey, supra.

In deciding the instant case, the trial judge had the benefit of a complete record. This record is consistent with the court's finding that between mid-October and Christmas of 1965, appellee and appellant, though still married, were separated. Appellee testified that it was during this period of separation that the baby was conceived through sexual relations with her present husband. She also testified that she had had no sexual relations with appellant for a year and a half prior to their separation in 1965. This testimony was admitted under authority of Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969).*fn1

[ 218 Pa. Super. Page 373]

Additional evidence was presented at the hearings which persuasively demonstrated that appellant is not the father of the child. In this regard, appellee's present husband testified that he is the father of the child and that his son was conceived during the time appellee was separated from appellant. Further, a letter was introduced into evidence written by appellant in which he admitted that the boy was the son of appellee's present husband.*fn2 The trial court found that the letter "was not written in anger as [appellant] testified but was written explaining circumstances of the conception of the child." Moreover, evidence was introduced on behalf of appellee which showed the results of a sperm test given to appellant in 1963. The diagnosis was aspermia (no sperm).*fn3

[ 218 Pa. Super. Page 374]

The trial judge did not believe that appellant or his corroborating witnesses were credible. We cannot find that the judge abused his discretion in this regard. "In custody cases, as in others, the question of credibility is for the trial judge." Commonwealth ex rel. Bell v. Bell, supra at 647, 189 A.2d at 909.

We have carefully examined the entire record and we are convinced that the trial judge's decision was based on sufficient evidence and that appellant has certainly not met his burden of establishing that the finding of the lower court is erroneous or that it is based on error of law.*fn4 See Commonwealth ex rel. Bell v. Bell, Id. at 648, 189 A.2d at 909.

The order of the lower court is therefore affirmed.

Disposition

Order affirmed.


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