No. 1003 October Term, 1978, Appeal from the Order Entered February 1, 1978 by the Court of Common Pleas, Civil Action--Law of Lebanon County at No. 2533, 1976.
Henry O. Heiser, III, Gettysburg, for appellant.
Bernerd A. Buzgon, Lebanon, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring opinion. Price, J., files a dissenting statement, in which Van der Voort, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.
This is an appeal from the order of the Common Pleas Court of Lebanon County which awarded the custody of a minor child, Lea Brooks Trefsgar, to her father, Brooks Trefsgar. The mother of the child, Lois Trefsgar, filed exceptions to the order which were dismissed nine months after they were filed. The mother appealed. We reverse the order of the lower court and award custody to the mother.
The parties were married in 1967, and their only child, Lea, was born that year. Both parties testified to marital strife which began shortly after their marriage. In January, 1976, after approximately fourteen marriage counseling sessions, appellant decided to leave the marital domicile and take Lea, their child, with her. Appellant eventually settled in Maryland where she began custody proceedings. Appellant was granted custody pendente lite, and appellee was served with a notice of the order and rule to show cause within 30 days of that service. Appellee obeyed the order from February through September of 1976 by returning Lea to her mother in Maryland after the exercise of every other
weekend visitations in Pennsylvania. However, in September, 1976, appellee retained Lea for an extra day and threatened to keep her in Lebanon. Appellant persuaded him to return Lea to Maryland, whereupon a decree pro confesso was entered in an award of custody to the mother. According to the docket entries from the Maryland proceedings, a certified copy of which was introduced into evidence,*fn1 notice of the entry of the decree pro confesso was sent to the father. However, on his next weekend visitation, he retained Lea and instituted these proceedings in Lebanon County to procure permanent custody of Lea in himself.
At the custody hearing in Pennsylvania, Mr. Trefsgar testified that he was a college graduate, that he was self-employed in the insurance business and earned approximately $26,000 per year. His work schedule involved a five-day work week beginning each day at 9:00 A.M. and ending between 4:00 and 5:00 P.M.; he rarely worked evenings. He lives in a home he purchased, in a residential neighborhood. He testified that Lea dresses herself, and he then takes her to school. They eat some meals at home and others at his father's restaurant. Finally, Mr. Trefsgar said he takes Lea to church, and that they also enjoy athletic activities such as bicycling, swimming, tennis.
Mrs. Trefsgar testified that she is also a college graduate and is employed as a sales representative for a communication consulting company. Her working hours are 9:00 A.M. until 5:00 P.M., five days per week. She resides in an
apartment complex in Columbia, Maryland, which is near two recreational areas, an elementary school and shopping center. Although Lea was not enrolled in Sunday school in Maryland, Mrs. Trefsgar explained that she would be soon and that Lea received spiritual training in the home since Mrs. Trefsgar had taught Sunday school at one time. The activities in which the child and ...