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JAMES M. SHOUP v. DONNA J. SHOUP (07/12/78)

decided: July 12, 1978.

JAMES M. SHOUP
v.
DONNA J. SHOUP, APPELLANT



No. 113 April Term, 1977, Appeal from the Order dated August 12, 1976, of the Court of Common Pleas, Family Division, of Butler County, at Ms.D. No. 35, December Term, 1973, Book 39, Page 285.

COUNSEL

George H. Hoffman, Pittsburgh, for appellant.

Frank P. Krizner, Butler, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Jacobs, P. J. and Van der Voort, J., join. Spaeth, J., files an opinion in support of remand in which Cercone, J., joins; Hoffman, J., concurs in the result. Hoffman, J., dissents from an affirmance of the lower court's order granting custody to the father because the record is insufficient to support an order disrupting the children's relationship with their mother. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 257 Pa. Super. Page 266]

The six Judges who decided this case being equally divided the order is affirmed.

[ 257 Pa. Super. Page 267]

IN SUPPORT OF AFFIRMANCE

PRICE, Judge:

This appeal by the mother of two boys, James, age 12 and Jeffrey, age 10,*fn1 is from the lower court's order granting custody to the father. Because we find the issues raised on appeal to be meritless, we would affirm the order of the court below.

Appellate courts enjoy a broad scope of review in custody matters. Davidyan v. Davidyan, 230 Pa. Super. 599, 327 A.2d 145 (1974). Thus, we are not bound by deductions and inferences of the trial court, Commonwealth ex rel. Bowser v. Bowser, 224 Pa. Super. 1, 302 A.2d 450 (1973), nor are we compelled to accept any findings not based on competent evidence. Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974). However,

"we have recognized that the trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge's determination of custody should be accorded great weight. [Citations omitted] Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge." Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-98, 296 A.2d 838, 841 (1972).

The record in the instant case does not reflect any abuse of discretion which would warrant disturbing the lower court's order.

The record indicates that the parties were divorced on March 17, 1972. Appellant, originally awarded custody of the boys on January 23, 1973, has enjoyed continuous custody and, according to the record, has cared adequately for the children since that time. The 1973 order granted appellee liberal visitation rights. On January 22, 1976, appellee filed a petition for custody. Following in camera questioning of

[ 257 Pa. Super. Page 268]

    the boys and a hearing at which both appellant and appellee testified, the lower court awarded appellee custody.

Appellant's first contention is that the evidence established that the appellee is unfit to assume custody.

"It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parties is the best interests and welfare of the child. Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92 (1965); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Commonwealth ex rel. Daven, 298 Pa. 416, ...


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