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AUGUSTINE v. AUGUSTINE (06/21/74)

decided: June 21, 1974.

AUGUSTINE, APPELLANT,
v.
AUGUSTINE



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, at No. D-1737 of 1973, in case of Mary C. Augustine v. Michael J. Augustine.

COUNSEL

Edward A. Witt, with him Witt & Witt, for appellant.

Ronald P. Koerner, with him Gatz, Cohen, Segal & Koerner, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., would affirm on the opinion of the court below.

Author: Hoffman

[ 228 Pa. Super. Page 313]

The parties were married on June 8, 1968. Three months later, on September 15, 1968, their son, Sean Augustine, was born. As a result of marital difficulties, the parties are now separated and in the process of a divorce action. The subject of the dispute presented to this Court is the custody of the now five-year old child.

Both parties provided contradictory versions of the factual setting of the dispute at the custody proceeding on August 24, 1973. The record reveals that the problems of the case can be traced to the very roots of the marriage. The father testified that he never loved his wife and married her solely because she was pregnant. He said that since the birth of their son his wife neglected the child to the point of exposing him to great peril. He said that she left Sean in his crib for hours

[ 228 Pa. Super. Page 314]

    on end and ignored his screams, while reading "her books". He described an incredibly callous and lethargic individual who refused to do housework and left dishes in the kitchen sink for days and weeks at a time. When the parties separated in June of 1970, the child remained with the father, while the mother failed to inquire, talk to or visit her son except on one occasion for a "couple of hours" during a period extending to May, 1971. While the mother admitted this lapse in her contact with her son, she denied neglecting him or the housework as her husband described it; she insisted that she loved her son and only failed to see him during the year's separation because she feared the child's father. She testified that she worked as a clerk and French translator, and had no assistance from her husband with either the care of the child or in the housework. She testified that her husband's resentment at being compelled to marry her showed in his daily scorn, apathy, and both mental and physical abuse toward her. She said that he often struck her with "flailing fists".

After a period of two years during which the parties once again lived together, the Augustines separated on June 2, 1973. This time the mother took Sean and went to live with her parents in Falls Church, Virginia. Mrs. Augustine described her parents as loving individuals able to care for her son and provide a happy and healthy home. The maternal grandparents live in a recently-constructed and comfortable split-level home. The child has his own bedroom. The grandfather is a diplomatic aide of enormous practical experience and education. His position with the Department of State has taken him to foreign countries during many of his years of diplomatic service. On cross-examination, it was admitted, however, that the grandmother had suffered from "a drinking problem", but that she had not

[ 228 Pa. Super. Page 315]

    had a drink in "a few weeks". On July 3, 1973, Mr. Augustine went to Falls Church and without prior notice took Sean back to Pittsburgh.

Both parties now work. Although the marriage seems to have brewed a pot of marital troubles, both parties are able to provide a healthy atmosphere, where the child may make friends, eat and sleep in a fine home, and have the expressed love of his parents. Since both parties are at work during the business day, the ability and influences of "caretaker" parents must be examined. When the father is working as a salesman, his sister, the child's aunt, cares for the ...


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