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THERESA A. BENDER v. KENNETH O. BENDER (11/03/78)

decided: November 3, 1978.

THERESA A. BENDER
v.
KENNETH O. BENDER, JR., APPELLANT



No. 1602 October Term, 1977, Appeal from A Custody Order dated April 18, 1977, of the Court of Common Pleas of Lancaster County, Civil Action, Law Pa., Equity to No. 17, Page 48.

COUNSEL

William J. Litvin, West Chester, for appellant.

H. Joseph Flynn, Lancaster, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort and Hester, JJ., dissent. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 261 Pa. Super. Page 13]

After having once awarded custody of a now six year old girl, Heather, to her father, the lower court then awarded custody to her mother. We reverse and remand for both procedural and substantive reasons. As a matter of procedure: the lower court made the change in custody on the basis of evidence not in the record; also, we do not have the comprehensive opinion that we must have in a custody case. As a matter of substance: the evidence that is of record strongly suggests that the court's earlier award of custody to the father was in Heather's best interest.

[ 261 Pa. Super. Page 14]

It is settled that the paramount concern in a custody dispute between parents is the best interest of the minor child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-08, 296 A.2d 625, 627 (1972); Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). "'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. Grillo v. Shuster, supra, 226 Pa. Super. at 235, 312 A.2d at 62, quoting Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 273-4, 248 A.2d 63, 66 (1968). Further, we are not bound by inferences or deductions made by the hearing judge from the facts found. Commonwealth ex rel. Bowser v. Bowser, 224 Pa. Super. 1, 302 A.2d 450 (1973). To enable us to exercise this quite broad review, "the hearing judge should file in every custody case a comprehensive opinion reflecting a thorough analysis of the record as a whole and specifying the reasons for the ultimate decision." Commonwealth ex rel. Grillo v. Shuster, supra 226 Pa. Super. at 237, 312 A.2d at 63. And see Commonwealth ex rel. Holschuh v. Holland Morritz, 448 Pa. 437, 292 A.2d 380 (1972); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976).

In order to apply these principles it will be helpful to state the case in several parts, one part for each of the lower court's successive orders.

-1-

Heather's parents were married in 1972 and separated in August 1976. Upon separation, the mother filed a petition for permanent custody of Heather. A hearing was held on September 9, 1976. The mother testified that she is a nurse's aid, working from 7:00 a. m. to 3:30 p. m., with four days off every two weeks. "Every now and then," she said, she works the second shift from 3:30 to midnight. N.T.

[ 261 Pa. Super. Page 1536]

    a.*fn* She explained that she and Heather live with her parents and her two teenage brothers at her parents' house; when she is working, her sister, Marjorie Seymour, who has her own small child, babysits for Heather. She said that she has "complete faith and trust" in her "sister's ability to care for Heather." N.T. 37a. She complained that when they lived together, her husband (Heather's father) had slapped her on a few occasions, that once he had closed her in a closet, and that he used to twist her arm to make her do as he wanted. N.T. 22-24a. She also accused her husband of never bathing Heather or changing her diapers, or punishing Heather with a fly swatter, of once throwing a shoe at Heather, and of once threatening to break Heather's back if she and Heather did not return to him. N.T. 25a, 28a, 30a. She admitted that she too had used the fly swatter to punish Heather. N.T. 39a. She acknowledged that once when she went with her parents to pick Heather up at her husband's apartment, her mother had carried a pistol, because, she said, her husband had previously threatened her. N.T. 45a. She also admitted that she has taken various items, such as scissors, hemostats, and tissues, from the hospital where she works. N.T. 49a.

Heather's father, a mechanic who now lives with his parents, denied that he had been violent towards his wife or Heather, although he admitted that he had once slapped his wife. He also admitted that on occasion he lost his temper and hollered, but, he said, no more than his wife. He said that both he and his wife had used a fly swatter on Heather, but he denied that he did not bathe or change Heather's diapers with sufficient frequency. (He said that sometimes when his wife returned from the late shift, and he was already in bed, she would find Heather unchanged.) He complained that his wife had shown indifference to Heather's welfare in that whenever she came to leave Heather with him, she would speak in a "constant string of profanity," N.T. 70a, and when he came to pick Heather up for weekends, he found bruises on her armpits, arms, legs, and

[ 261 Pa. Super. Page 16]

    buttocks. N.T. 73a. (He admitted, however, that he had no proof that the bruises were not the result of "the child falling down." N.T. 96a.) He related one incident when Heather was ill and supposed to take medication. According to him, when his wife came for Heather it was raining and Heather was not wearing shoes or a jacket, but when he tried to explain the situation, his wife just cursed and "tried to pull [Heather] right out of my arms and take her out into the rain dressed as she was." N.T. 76a. The father also said that his wife has not had a good relationship with her own parents in the past, that she told him that they had neglected her medical needs as a child, and that she usually referred to her parents in derogatory terms, once even saying that she did not want them to see Heather at all. N.T. 69a. He said his wife's sentiments in regard to her sister were even stronger. "She's called her every conceivable name that you can come up with: Bastard, anything along this line; a slut, animal, a whore . . . . She would not let her name be used in the house." N.T. 85a. He related several unsavory incidents that the sister was allegedly involved in, and claimed that his wife had told him that her sister and her husband "break into homes" and had on one occasion "attempted to run her off the road, and her sister's husband fired a shot at them." N.T. 87-88a.

Two of the father's friends testified on his behalf. They said that they used to visit the couple's home once a week. They corroborated the father's testimony in regard to the mother's profanity and her criticism of her parents and sister, and also in regard to the mother taking Heather out into the rain, Heather having bruises on her body, and the mother having said she had taken things from her employer. See N.T. 102-122a.

At the conclusion of the hearing the court awarded custody of Heather to the mother, with visitation to the father. The court also ordered that Marjorie Seymour, the mother's sister, not baby-sit for Heather any more. The court made no findings, and did not explain its ...


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