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COMMONWEALTH EX REL. ULMER v. ULMER (12/11/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1974.

COMMONWEALTH EX REL. ULMER
v.
ULMER, APPELLANT

Appeal from order of Court of Common Pleas of Lancaster County, H. C. Docket No. 8, Page 184, in case of Commonwealth of Pennsylvania ex rel. Pamela K. Ulmer v. Robert E. Ulmer.

COUNSEL

John Milton Ranck, for appellant.

John F. Pyfer, Jr., with him Xakellis, Perezous & Mongiovi, for appellee.

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

Author: Price

[ 231 Pa. Super. Page 145]

The parties, Appellant, Robert E. Ulmer and Appellee, Pamela K. Ulmer, both 27 years of age, were married on September 1, 1967. Of this union there were two children born, Kelley K. Ulmer, born December 14, 1968 and Robin A. Ulmer, born April 17, 1972.

On March 14, 1974 appellee left the domicile of the appellant, left the children with appellant, and moved into a home occupied by her parents and family. On April 5, 1974 appellee instituted this action for custody of these children. The lower court awarded custody to appellee-mother and appellant-father has filed this appeal.

Appellee states the question involved to be: "Whether the evidence as a whole in this case supports the conclusion that the interests and welfare of two very young daughters, ages 2 and 5, demand that custody be granted to their mother, the Appellee herein."

[ 231 Pa. Super. Page 146]

We agree with this statement of the question, but unfortunately are unable to determine how, if indeed it was, this question was answered by the lower court.

At the conclusion of a one day hearing on April 17, 1974, the court by Order,*fn1 less than two pages in length, made its determination.

This order ". . . determines that by reason of the ages of these children the law presumes that the mother is better qualified to raise children of tender ages and that no testimony has been presented as to her unfitness to be a mother and to raise these children. . . ." This is not a complete and, therefore, not a correct statement of the law. The Pennsylvania Supreme Court in Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 109, 296 A.2d 625, 627 (1972), has held the "tender years" doctrine to be "merely the vehicle through which

[ 231 Pa. Super. Page 147]

    a decision respecting the infant's custodial well-being may be reached where factual considerations do not otherwise dictate a different result." (Emphasis added). We have most recently, in Davidyan v. Davidyan, 230 Pa. Superior Ct. 599, 327 A.2d 145 (1974), followed this interpretation. The case now before us, unlike Davidyan, offers no independent basis for the support of the lower court decision.

The scope of review of this court in a child custody case is of the broadest type. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972). Although we will not nullify the fact-finding function of the hearing judge, we are not bound by deductions or inferences made by the lower court from the facts as found. Commonwealth ex rel. Bowser v. Bowser, 224 Pa. Superior Ct. 1, 302 A.2d 450 (1973); Commonwealth ex rel. Gifford v. Miller, 213 Pa. Superior Ct. 269, 248 A.2d 63 (1968). We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice. Commonwealth ex rel. Morales v. Morales, 222 Pa. Superior Ct. 373, 294 A.2d 782 (1972); Commonwealth ex rel. Johnson v. Pinder, 217 Pa. Superior Ct. 180, 269 A.2d 511 (1970).

The difficulty with this case is that the lower court has not discussed the basis of the decision nor the evidence. In these circumstances we find ourselves unable to discharge our responsibility in good conscience. We might, independent of guidance by a thorough decision of the lower court, either affirm or reverse. We perceive this to do violence to the rights of the parties to have their case weighed and decided by the trier of facts and determiner of credibility, i.e., the lower court. And even more important, such a course of action on our part would not properly recognize the great interest

[ 231 Pa. Super. Page 148]

    of this Commonwealth in the best interests and welfare of these children. These considerations require that we refer this case back to the court below for further review and determination of the best interests and welfare of these children. While the record is complete, we do not limit the lower court in its discretion to this record as it may well appear that a further hearing may appear desirable.

Reversed with a procedendo.

Disposition

Order reversed with a procedendo.


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