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GUNTER v. GUNTER (03/29/76)

decided: March 29, 1976.

GUNTER, APPELLANT,
v.
GUNTER



Appeal from order of Court of Common Pleas of Indiana County, No. 884 C.D. of 1975, in case of Betty Jane Gunter v. Merle F. Gunter.

COUNSEL

Kenneth B. Burkley, with him John A. Kopay, for appellant.

Walter B. Cope, Jr., and Miller and Cope, submitted a brief for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., concurs in the result. Price, J., dissents.

Author: Spaeth

[ 240 Pa. Super. Page 384]

This is an appeal from an order changing the custody of a seven year old boy, whose name is David, from his mother to his father. The order must be set aside and the record remanded with a procedendo. There are two reasons for this conclusion. First, the hearing judge

[ 240 Pa. Super. Page 385]

    relied on David's statement that he would prefer to be with his father; this statement, however, was not transcribed. Second, the testimony presented to the judge was most incomplete; nor does the judge's opinion assist us in appraising it. Because of these deficiencies we cannot in good conscience say whether David's best interests have been served.

I

At the hearing, the mother testified on the one side, the father, his second wife, and his mother, on the other. The hearing judge then said: "I want to see the boy with the attorneys." (N.T. 38.) The record states that there ensued a "Conference in Chambers." After the conference, the judge returned to the courtroom, and said to the parties:

"I talked to the little boy just a little and -- while, of course, he is very young yet, only seven years old -- what I get from him, he loves his mother and his father both; not downgrading one over the other." (N.T. 39-40.)

The judge then dictated his order, awarding the custody of David to the father and providing for visits by the mother, and concluded by saying:

"I did ask him one thing -- I said, 'If I say you are to live with your father will you cry when you have to go to visit with your mother?' Before both attorneys he said he would not.

"That is the present Order of the Court. Custody is to take effect immediately. All right." (N.T. 41.)

In his opinion filed pursuant to Rule 46 the hearing judge goes beyond this record, stating:

"The Court, in the presence of the attorneys representing the petitioner [the mother] and the respondent [the father], asked David with which parent he would like to make a permanent home and he definitely said he would like to live with his father. The Court asked him if the Court would direct that he make his

[ 240 Pa. Super. Page 386]

    home with his father if he would be willing to go and visit his mother and not cry when he visited her and he replied that he would visit his mother and would not cry." (Opinion of Lower Court, at 2.)

Counsel for the mother in his brief to us

"contends . . . that there was other testimony given in the Judge's Chambers that should be available to this Honorable Court to assist it in its broad reviewing powers.

"David was not asked by the Court why he would rather live with his father nor was he asked any questions concerning his home life with his mother, with whom he had lived his entire life. Counsel for appellant, [the mother] however, did ask David why he wanted to live with his father, to which David replied 'I don't know.'" (Brief for Appellant, at 11.)

-A-

In Commonwealth ex rel. Morales v. Morales, 222 Pa. Superior Ct. 373, 375-376, 294 A.2d 782, 783 (1972), it is stated:

"Under both the statutory and case law, the scope of our review in child custody cases is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it. Commonwealth ex rel. Gifford v. Miller, 213 Pa. Superior Ct. 269, 273-274, 248 A.2d 63 (1968) and cases cited therein. The decision of the court below here has nothing on the record which supports it due to the incorrect procedure followed in hearing the testimony of the children. If this testimony is to be taken out of the presence of the contending parties, counsel should be present and have an opportunity to examine them, Snellgrose Adoption Case, 432 Pa. 158, 166, n. 3, 247 A.2d 596 (1968), and this testimony should be on the record."*fn1

[ 240 Pa. Super. Page 387]

The order of the lower court was therefore reversed and the record remanded.

Similarly, in Williams v. Williams, 223 Pa. Superior Ct. 29, 33, 296 A.2d 870, 872 (1972), reversing the order of the lower court, it is stated:

"While the court below found that the children had expressed a preference to remain with their father, there is no record of any testimony by the children. Such testimony is necessary to support a finding of the children's preference where, as here, it is the principal reason for awarding them to their father. See Commonwealth ex rel. Morales v. Morales. . . ."

In Commonwealth ex rel. Bowser v. Bowser, 224 Pa. Superior Ct. 1, 302 A.2d 450 (1973), there is favorable comment on the fact that in taking a child's testimony, the lower court had done "exactly that which we have indicated is most appropriate [citing Williams and Morales ]." Id. at 3 n. 1, 302 A.2d at 451 n. 1.

Finally, in Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Superior Ct. 229, 237-38, 312 A.2d 58, 63 (1973), it is stated:

"Perhaps the most important facts not mentioned in the hearing judge's opinion are what he was told by the three children [footnote omitted]. At the close of the hearing the children were individually questioned by the judge in chambers. Counsel were offered the right to be present but both declined. The substance of these conferences does not appear either in the transcript or in the opinion, nor does the opinion indicate the weight the hearing judge gave to what

[ 240 Pa. Super. Page 388]

    the children told him. The fact that we therefore do not know what the children told the judge by itself necessitates remand [citing and quoting from Commonwealth ex rel. Morales v. Morales, supra ]."

-B-

It is evident from the foregoing decisions that the order of the lower court must be reversed.

First, the hearing judge failed to follow the prescribed procedure, for although he permitted counsel to be present and to question David, he did not direct that a transcript be made.

Second, in consequence of this failure, we cannot tell what David told the hearing judge. It is true that immediately after David had been questioned, the judge summarized for the record some of the testimony. Later, however, in his opinion, the judge expands on this summary, and characterizes the testimony, stating that he asked David "with which parent he would like to make a permanent home," and that David "definitely said he would like to live with his father." However, what does "definitely" mean? What exactly did David say, and what questions elicited and followed his answer? Is counsel for the mother correct in his recollection that when David was asked why he wanted to live with his father, he replied, "I don't know"? Whatever David said, it was not much. The hearing judge himself said, "I talked to the little boy just a little . . . ." Moreover, the judge's summary on the record of what David said is not the same as the judge's summary in his opinion. On the record the judge said: "[W]hat I get from him, he loves his mother and his father both; not downgrading one over the other." The judge said nothing about David "definitely" preferring his father; that is said only in the opinion.

Finally, whatever it was that David said, the hearing judge evidently attached ...


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