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JAMES O. TOMLINSON v. JANET TOMLINSON (06/29/77)

decided: June 29, 1977.

JAMES O. TOMLINSON, APPELLEE,
v.
JANET TOMLINSON, APPELLANT



Appeal from the Order of Court entered July 27, 1976, by the Court of Common Pleas of Cumberland County at No. 38 February Term, 1971.

COUNSEL

Laurence E. Norton, II, Carlisle, for appellant.

John B. Fowler, III, Carlisle, for appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, P. J., and Cercone and Van der Voort, JJ., join in this opinion. Hoffman, J., files a dissenting opinion. Price, J., files a dissenting opinion in which Hoffman, J., joins. Jacobs, J., dissents.

Author: Spaeth

[ 248 Pa. Super. Page 197]

This is an appeal from an order awarding custody of a 13 year old girl, Susan Louise, to her father. Because the

[ 248 Pa. Super. Page 198]

    findings of the hearing judge are not supported by competent evidence, we reverse.

I

Janet and James Tomlinson were married in July, 1961. Their older daughter, Beth Ann, was born in April, 1962; Susan was born in September, 1963. The parents were divorced in November, 1970, and in January, 1971, the mother was awarded custody of the two girls. She has retained custody, for the lower court's awarding custody of Susan to the father, was stayed.

Since the divorce, the mother who does not work, has taken care of both girls, as well as taking care of her 19 year old daughter and 18 year old son from a previous marriage. The father has remarried, and he lives with his new wife, Judith, and her two children from a previous marriage. The father filed the petition for a change of custody only in regard to Susan. Two hearings were held on the petition.

At the first hearing on January 6, 1976, the father testified that he filed the petition because Susan had expressed her desire to live with him. He explained that he had always had a closer relationship with Susan than with Beth Ann, and that Susan told him that she and her sister "get on one another's nerves." N.T. 5.*fn1 He had waited to file his petition until his new house was completed, so as to provide Susan with her own bedroom, and so that Susan could settle right into the new community without an additional move. His wife testified that she works 25 hours a week, and is never home later than 4:00 in the afternoon. N.T. 14. The mother testified that the girls share a bedroom, and get along well. She claimed that the father creates the problem between the girls in that he caters to Susan, and that it was not until Susan heard about the new house that she started saying that she wanted to live with her father. The mother also claimed that the father had not exercised his visitation rights to the fullest. N.T. 18-20.

[ 248 Pa. Super. Page 199]

Susan was questioned by the judge in chambers with counsel present, and stated that she liked where her father lives better than where her mother lives because it is "more open." N.T. 25-26.

At the second hearing, on June 18, 1976, the father explained that he would try to treat the girls equally in regard to material things, but that he found Beth Ann "a little flaky when it comes to something that is good for her." N.T. 4. When it was pointed out that if Susan were to live with him, he would see less of Beth Ann, the father admitted that he had not really thought about that. N.T. 5-6. The mother testified that she had spoken to Susan to determine the basis of her desire to live with her father, but had been unable to elicit any explanation. She further testified that she worried that separation would lead to problems in the girls' relationship. N.T. 2-3. Susan was again questioned by the judge. Her entire statement was as follows:

Q. [THE JUDGE]: Do you like it in Lemoyne?

A. [SUSAN]: It is okay.

Q. You like to visit with your father?

A. What?

Q. You like to visit with your father?

A. Yes.

Q. You like it where he lives? You like to visit with him in the area where he lives?

A. Yes.

Q. Isn't it a new house?

A. Yes.

Q. Do you want to go live with him?

A. Yes.

Q. You want to visit with ...


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