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COMMONWEALTH EX REL. PRUSS v. PRUSS (09/22/75)

decided: September 22, 1975.

COMMONWEALTH EX REL. PRUSS, APPELLANT,
v.
PRUSS



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 7303002, in case of Commonwealth of Pennsylvania ex rel. Karl John Pruss and Marc Erich Pruss, by their father and natural guardian, Paul Pruss, Jr. v. Joanne Pruss.

COUNSEL

Mary Bell Hammerman, for appellant.

Charles W. Gross, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 236 Pa. Super. Page 248]

Appellant, Paul Pruss, and Joanne Pruss, appellee, were married on April 24, 1965. Two sons were born of the marriage, Karl John in 1965 and Marc Erich in 1967.

[ 236 Pa. Super. Page 249]

The parties were separated in June of 1973. Both children have resided with their mother since the parties separated, subject to visitation rights of the father. Mr. Pruss' visitation rights and the custody and support of the children were the subject of an order of the Court of Common Pleas of Philadelphia County entered on January 3, 1974, and modified by the agreement of the parties on January 30, 1974.

Mr. and Mrs. Pruss were divorced on March 14, 1974. At that time, appellant instituted a habeas corpus petition seeking custody of his sons. Two hearings were held on the petition. Following the latter, on September 4, 1974, the court denied the petition for custody. From that denial, appellant has brought this appeal.

In reviewing an award of custody, this court must review all the evidence, bearing in mind the best interests and welfare of the children. Davidyan v. Davidyan, 230 Pa. Superior Ct. 599, 327 A.2d 145 (1974); Auman v. Eash, 228 Pa. Superior Ct. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Morales v. Morales, 222 Pa. Superior Ct. 373, 294 A.2d 782 (1972). The best interests of the children are not limited to physical well-being, but include moral, intellectual, and spiritual welfare. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972). Where the lower court has made a finding of fact based upon competent evidence, we will not nullify that decision. Auman v. Eash, supra. We must accept that court's findings in matters of the credibility of witnesses and the weight to be accorded their testimony. Commonwealth ex rel. Gifford v. Miller, 213 Pa. Superior Ct. 269, 248 A.2d 63 (1968).

Applying these legal principles to the instant case, we find that the testimony adduced at the hearings on the petition portrayed Paul Pruss as a father who is concerned about the welfare of his children, but who is very temperamental. His violent temper caused several interruptions in the proceedings which required the admonitions

[ 236 Pa. Super. Page 250]

    of the lower court to restore order. Moreover, appellant was non-responsive to many questions asked of him, and continually attempted to act as his own advocate although his attorney was present to represent his interests.

During the cross-examination of Mr. Pruss, an incident indicative of his attitude occurred:

"Q. Isn't it true that a week ago, Sunday, during their visitation, when you had visitation, your wife had to resort to the police department to regain custody of the children?

A. Now, listen here, counsel, I am going to tell you something --

THE COURT: Mr. Pruss, you are here with a lawyer to plead your case. There is only a question of custody here. I am not going to sit here and hear you argue with counsel. If I do that, we would take a week on every case. A lot of things will depend on how I feel about this case. How can I be fair and ...


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