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TOMB v. MCAULEY (06/22/72)

decided: June 22, 1972.

TOMB, APPELLANT,
v.
MCAULEY



Appeal from order of Court of Common Pleas of Clearfield County, May T., 1971, No. 410, in case of Gordon W. Tomb v. Nancy J. McAuley.

COUNSEL

Anthony S. Guido, for appellant.

Edward V. Cherry, with him Gleason and Cherry, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Concurring Opinion by Spaulding, J. Hoffman and Cercone, JJ., join in this concurring opinion.

Author: Per Curiam

[ 222 Pa. Super. Page 58]

Order affirmed.

Disposition

Order affirmed.

Concurring Opinion by Spaulding, J.:

Appellant Gordon J. Tomb, appeals from the order of President Judge John A. Cherry of the Court of Common Pleas of Clearfield County, dismissing appellant's petition for writ of habeas corpus, seeking custody of his son, Kevin, and awarding custody to appellee mother, Nancy J. McCauley.

The parties were divorced in September 1967. They are the parents of two children, Kevin, age 5, the subject of this action, and Becky Sue, age 9. At the time they were divorced, the parties entered into a written agreement providing that appellee mother receive custody of Kevin and appellant father custody of Becky Sue. Both parties have since remarried. As a result of her remarriage, appellee mother and her new husband have had three children. No children have been born to appellant husband since his remarriage.

The settlement agreement fixing custody has been adhered to by both parties. However, appellant now seeks custody of Kevin based on his contention that custody with him is in the best interests of the child.

While the scope of our review in child custody cases is quite broad, Act of July 11, 1917, Section 1, P. L. 817, 12 P.S. ยง 1874, we cannot nullify the fact-finding function of the hearing judge, and in judging the credibility of witnesses and the weight to be given to their testimony, we must accept his findings. Commonwealth ex rel. Gifford v. Miller, 213 Pa. Superior Ct. 269, 273-4, 248 A.2d 63 (1968); Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1953). As we stated in Commonwealth ...


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