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COMMONWEALTH EX REL. JOANNE M. SCHALL v. DENNIS B. SCHALL (12/02/77)

decided: December 2, 1977.

COMMONWEALTH EX REL. JOANNE M. SCHALL
v.
DENNIS B. SCHALL, APPELLANT



No. 1439 October Term 1976, Appeal from Order of the Court of Common Pleas, Civil Action, Law - Northampton County at No. 469 - May Term, 1975.

COUNSEL

Donald S. Himmelreich, Easton, for appellant.

Salvador J. Salazar, Northampton, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion. Jacobs, J., dissents and would affirm.

Author: Spaeth

[ 251 Pa. Super. Page 263]

This is an appeal by a father from the lower court's order awarding custody of a four year old boy to his mother. The mother, appellee, filed a habeas corpus petition to obtain custody of the child on July 31, 1975. On August 28, 1975, an initial hearing was held and temporary custody was awarded to the father, with visitation rights by the mother. A second hearing was held on December 3, 1975, and an order was entered maintaining the status quo. Legal argument was had on February 3, 1976, and on March 31, 1976, the lower court granted the petition for habeas corpus and awarded custody to the mother. This appeal followed.

In a child custody case the hearing judge's inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). Where the hearing judge has failed to comply

[ 251 Pa. Super. Page 264]

    with these requirements, we have not hesitated to remand. Id. Where, however, the hearing judge has complied with these requirements, we have consistently held that we must defer to his findings. Commonwealth ex rel. Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977) ("absent an abuse of discretion, his decision will not be reversed"); In the Interest of Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976) ("we must defer to his findings"); Clair Appeal, 219 Pa. Super. 436, 281 A.2d 726 (1971) ("must always give great weight to [judge's] opinion"); Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa. Super. 102, 192 A.2d 154 (1963) ("surely should remain in [judge's] discretion"); Commonwealth ex rel. Dinsmore v. Dinsmore, 198 Pa. Super. 480, 182 A.2d 66 (1966) ("should give great weight to the opinion of the hearing judge . . . [who] is in a much better position . . . .").

In the present case the hearing judge, President Judge Clinton Budd PALMER, has complied with the requirements that we have imposed, for he has filed a substantial opinion in which he summarizes and discusses the evidence and carefully explains the reasons for his decision to award custody of the child to the mother.*fn1

Despite our confidence in the hearing judge's factual findings, we are nevertheless unable to make an appropriate review of his decree. In his opinion the hearing judge relied explicitly on the "tender years" presumption. After he wrote his opinion, the Supreme Court in a plurality opinion indicated that in view of the concept of the equality of the

[ 251 Pa. Super. Page 265]

    sexes, the "tender years" presumption retained no vitality, even as only a procedural device by which to allocate the ...


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