Appeal from the Order of August 11, 1976, of the Court of Common Pleas of Wayne County, Domestic Relations Division, No. 32 October Term, 1975, DR 1.
Z. R. Bialkowski, Scranton, with him Louis A. Fine, Honesdale, for appellant.
Michael J. Pepe, Jr., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 248 Pa. Super. Page 384]
This is an appeal from an order affirming an award of custody. The first custody hearing in this case occurred on November 25, 1975, and resulted in an order awarding custody of two minor children to their father, appellee herein. Pursuant to the terms of the initial order, a review hearing was held before the same lower court judge on August 11, 1976, at the conclusion of which the court reaffirmed its original disposition. This appeal followed.
Appellant and appellee are the divorced parents of Lynn Marie and Dana Rider, girls ages nine and seven at the time of this appeal. After the couple's final separation appellant retained custody of the children, by agreement, while appellee was accorded visitation privileges. On a subsequent occasion appellee failed to return the children and thereafter refused to do so. Appellant then began a habeas corpus action which led to the hearings mentioned above.
Appellee presents a threshold claim in this matter, maintaining that the lower court's order of November 25, 1975, is a final, binding and conclusive finding that the best
[ 248 Pa. Super. Page 385]
interests of the children are served by the father retaining custody, and that the same order is res judicata as to all issues that could have been raised in that proceeding. We find no merit in this contention. The court below provided for a review hearing as a part of its initial disposition. It is thus obvious that the court itself did not consider its order of November 25, 1975, to be final or conclusive in nature. At the hearing on August 11, 1976, the court heard testimony, reassessed the evidence and was prepared to alter its former disposition if the circumstances required such action. A second hearing would otherwise have been pointless. It does not appear from the record that appellee attempted to raise the order of November 25, 1975, as a bar to the subsequent review proceeding in the lower court. Under these circumstances it would be unjust to deny review of appellant's claims and we find this appeal to be properly before us.
Appellant's first assignment of error is that the court below improperly based its decision on an in camera interview with the children which was unrecorded and without the presence of counsel. Appellee contends that this issue is waived because the parties agreed to the absence of counsel and appellant failed to request that the interview be recorded. This is not, however, a matter of a right personal to one of the parties which is waived unless properly asserted. This court was confronted with a highly similar situation in Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973), where it pointed out that:
"'Notwithstanding recent changes in the habeas corpus statutes pertaining to appeals in child custody proceedings, the scope of review of [the Supreme Court] and of the Superior Court remains that of the broadest type [footnote omitted].' Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 443, 292 A.2d 380, 383 (1972). Thus a case will be remanded where an important issue or piece of evidence is not included in the record. 'Under both the statutory and case law, the scope of our review in child custody cases is quite ...