Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1972, No. 4, in case of Commonwealth ex rel. Mary E. Bowser v. Clarence E. Bowser.
Terrence A. Signorella, with him Cooper & Signorella, for appellant.
Michael M. Mamula, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.
Appellant Clarence E. Bowser appeals from an order of the Court of Common Pleas of Butler County granting appellee Mary E. Bowser a writ of habeas corpus and awarding her custody of their daughter Mary Darlene, age ten.
The parties were divorced in January, 1967. They are the parents of two daughters, Susan, age 12, and Mary Darlene, age 10, the subject of these proceedings. Since their divorce, both parties have remarried. Each lives in Butler County with their new spouse and several children or stepchildren from their other marriages. As determined by the trial judge, concurred in by the caseworker for the Bureau of Children's Services, and admitted by the parties, both parents offer Mary Darlene a suitable home and environment in their new family settings.
Appellee mother had custody of both daughters until October, 1970, when custody of Susan, then 10 years of age, was awarded to appellant father, apparently based in large part on the lower court's conclusion that appellee's new (and present) husband had made an indecent advance towards Susan. Appellant also requested custody of Mary Darlene at that time, but
his request was denied. While the facts are disputed, it is clear from the record that since October, 1970, and especially for several weeks prior to June 2, 1972, Mary Darlene exchanged telephone calls with appellant and her sister Susan, despite appellee's objections. On that date she called her father to request that he meet her, left appellee's residence, and moved into appellant's home. She remained with him until the court below awarded custody to appellee, which order is the subject of the instant appeal.
Both parties testified below that they desired to have custody of the child and would provide a good home for her. Appellant's new wife testified in the same vein, but appellee's present husband did not appear at the hearing. The other children from both households also testified that they desired to have Mary Darlene live with them. The crucial testimony, however, was that of Mary Darlene herself, given in chambers, with counsel present, but not the parties, and appearing on the record.*fn1
Mary Darlene appears to be a normal, bright 10-year-old who does quite well in school. She testified that she prefers to live with appellant and her natural sister, rather than with her mother. Her testimony in this regard did not waiver despite extensive questioning. She voiced her unhappiness with living in her mother's home and, in response to a question by the judge, indicated that she would be "quite unhappy" if she were required to live there. The child also enumerated several reasons for disliking ...