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CUSTODY JOHN ROBERT NEAL (11/08/78)

decided: November 8, 1978.

IN RE CUSTODY OF JOHN ROBERT NEAL, A MINOR. APPEAL OF JOHN K. NEAL


No. 358 April Term, 1978, Appeal from Order of the Court of Common Pleas of Washington County, Pennsylvania, Civil Division, at No. 351 June Term, 1977, A.D., filed September 20, 1977.

COUNSEL

Samuel S. Pangburn, Washington, and John V. Adams, Jr., Pittsburgh, for appellant.

Wray G. Zelt, III, Washington, for appellee.

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

Author: Hester

[ 260 Pa. Super. Page 152]

In this custody dispute, the father appeals from an Order awarding a three-year old child to the mother. Since we find the record complete and the lower court has filed a comprehensive Opinion discussing the evidence and the basis of its decision, we will affirm.

[ 260 Pa. Super. Page 153]

We note initially that appellate review of child custody cases is of the broadest type. Commonwealth ex Page 153} rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977). While we will not nullify the fact finding function of the hearing judge, we are not bound by deductions or inferences which have no competent evidence to support them. Tomlinson v. Tomlinson, 248 Pa. Super. 196, 374 A.2d 1386 (1977); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). To facilitate this broad review, we require the hearing court to provide us with a "full and complete explanation of the reasons underlying his decision, which reasons should be set forth in a complete, comprehensive Opinion." Commonwealth ex rel. Fox v. Fox, 216 Pa. Super. 11, 260 A.2d 470 (1969); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). Additionally, the record must be complete, including if possible, disinterested testimony bearing on the present capabilities of the parties to provide the child with a stable atmosphere. Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974). Where the hearing judge fully complies with these requirements, his decision will not be reversed, absent an abuse of discretion. Tobias, supra; Carlisle Appeal, 225 Pa. Super. 181, 310 A.2d 280 (1973). Finally, we are guided by the long standing principle that the paramount concern in a child custody dispute is the best interest and permanent welfare of the child. Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92; Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972).

The parties were married on February 15, 1975 and resided in Washington, Pennsylvania. Appellee Kathy Neal gave birth to John Robert Neal on September 26th that same year. This is the only child of the marriage and is the subject of the present controversy.*fn1 Sometime during the summer of 1976, Kathy Neal suffered a mild stroke and, although she had completely recovered at the time of the custody hearing, it appears the marriage was never the same afterwards. Kathy sought outside employment and was

[ 260 Pa. Super. Page 154]

    away from home much of the time, to her husband's discontent. She began meeting friends several nights during the week at a local restaurant in addition to her part-time job as a receptionist, all of which her husband objected to. Conditions worsened between the two until Christmas Day, 1976, when a shouting match prompted Kathy to announce her intentions of obtaining a divorce. The parties separated in March, 1977 and, that same month, an agreement, drafted by John Sr.'s counsel, was signed by both parents, granting "complete and permanent custody" of John Jr. to John Sr. and awarding "unlimited visitation rights" to Kathy. Kathy did not seek counsel before signing the agreement and testified she felt pressured into signing it. On June 30, 1977, Kathy filed the instant petition for custody.

At the time of the hearings the parents were divorced, a decree having been entered July 11, 1977. John Sr. had taken the child to live with him in Mt. Lebanon at the home of his parents. He is employed as an X-ray technician at Washington Hospital and works Tuesday through Saturday, 7:00 A.M. to 3:00 P.M. These hours require him to leave home at 5:30 A.M. and return at 4:30 P.M. In addition, he is on call with a Washington ambulance service 6:00 A.M. to 6:00 P.M. on Sundays. Monday is his day off. When he is home, he provides full care for John Jr., accepting responsibility for all phases of the child's well being. While John Sr. is away from home, the paternal grandmother cares for the child. She testified she is willing to undertake that task and in fact appellee's counsel stipulated the grandmother could provide an adequate home for the child.

Kathy Neal lives by herself in a Washington, Pennsylvania apartment and is employed as a physician's secretary and lab technician. Her hours are 9:00 A.M. to 5:00 P.M., Monday through Friday. Visitation arrangements at the time of the custody hearings allowed her to keep John Jr. with her Friday evening to Sunday evening. Her plans were to hire a babysitter, one Midge Lyle, to be with John Jr. while ...


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