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COMMONWEALTH PENNSYLVANIA EX REL. RAY K. DRUM v. GWENN B. DRUM (02/08/79)

decided: February 8, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. RAY K. DRUM, APPELLANT,
v.
GWENN B. DRUM



No. 513 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Adams County at No. 33 February Term, 1977.

COUNSEL

Henry O. Heiser, III, Gettysburg, for appellant.

S. M. Raffensperger, Gettysburg, for appellee.

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

Author: Van Der Voort

[ 263 Pa. Super. Page 249]

This is an appeal by a husband-father from an Order of the lower court providing limitations on his rights to visitations with his three children. The appellant contests that part of the lower court order which provided that when he had temporary custody of his children such visitations should be without the presence of the appellant's female companion.

At the time of proceedings in the lower court and argument before our Court, the appellant was still married to the appellee, the mother of the children. A divorce action brought by the appellant was pending. The children were aged thirteen, eleven and eight. In his brief to our Court, the appellant states an intention to marry the female companion whose presence was prohibited during periods of visitation.

Our scope of review in custody cases is quite broad. Commonwealth ex rel. Morales v. Morales, 222 Pa. Super. 373, 375, 294 A.2d 782, 783 (1972). While we will not nullify the fact-finding function of the hearing judge, we are not bound by deductions or inferences made by the lower court from the facts found. Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 147, 331 A.2d 665, 667 (1974). In

[ 263 Pa. Super. Page 250]

    all cases, the prevailing consideration is the best interests and welfare of the children involved. Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). From our thorough review of the record in the instant case, we are convinced that the lower court did not commit error in establishing the conditions upon custody about which the appealing father complains.

It is well established that a parent may not be denied custody or even visitation solely because of an involvement in a meretricious relationship. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Sorace v. Sorace, 236 Pa. Super. 42, 344 A.2d 553 (1975); and Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973). Here we are not faced with a denial of visitations by a father, but merely a condition placed upon such visitations, at the mother's request. In our review, we find particularly persuasive the following discussion in the opinion of the lower court:

"This is not the first case where such a request has been made of us and we have, on a few occasions, imposed similar conditions upon visitation. In other cases we have denied the request because we felt that the request was motivated more by resentment on the part of the mother than by concern for the welfare of the children. In the case now before us, however, we perceive the situation as being somewhat different because here the mother's concern is something which does bear considerably upon the welfare of the children. Here we have a mother concerned about how her children are going to react to visitations with their father who is still married to their mother but having a close association with another woman in the light of what they have been taught at home and in church regarding such relationships. We do not think that the courts can say with any degree of certainty that such experiences will not adversely affect the children. Even if the children tell us now that it makes no difference to them, we wonder if it is fair to rely upon the judgment of the children in such matters. It is only

[ 263 Pa. Super. Page 251]

    recently that we have begun to scratch the surface of the long-range traumatic effects upon our children of what happens to them mentally and emotionally during custody disputes and the ultimate dissolution of the marriage of their parents. One thing is certain -- there is nothing in the evidence of this case or of any other that says that such relationships enhance the welfare of the children. "Moreover, it seems vital to us that the purpose of visitation for the father is to continue or to stabilize the relationship between the father and his children, and we do not think it is unreasonable for him to set aside his own romantic interests during the period of time while he is still married to the children's mother for the period of time when he has the children with him. In our interviews with the children we tried to determine whether the father's relationship with his girl friend in any way detracts from his attention to his children during their visitations with him. The oldest child was the most responsive. She indicated that her father wouldn't take her out on her last birthday because his girl friend could not be present . . . Interestingly enough, the youngest child was aware of the problem and even she knew that this was wrong . . .

"Under all of the circumstances of this case, we are of the opinion that the condition we have imposed upon the father's visitation with his children is not unreasonable and that their best welfare will be promoted if the condition is imposed at least until the time when the marriage between the father and mother has been legally resolved (sic)."

We find the condition imposed by the lower court to be reasonable and proper in the circumstances of this case, and further, find that it would serve the best interests of the children. Clearly, the trial court's conclusion, in that regard, is supported by ample evidence of record.

The dissent, in suggesting a remand, relies principally upon the conclusion that the appellee mother was motivated "in large part" by feelings of resentment in seeking the

[ 263 Pa. Super. Page 252]

    condition upon visitation which the lower court imposed. Curiously, the dissent goes on to state: "Not that the mother is to be blamed; quite to the contrary, it would be astonishing if she were not resentful of someone who, while purportedly her best friend, has, as she must see it, stolen her husband and destroyed her family." While the issue of the mother's motivation is essentially irrelevant to the question of what is in the best interests of the children, it should be noted that the lower court specifically found as a fact that the appellee's request was not motivated by resentment. This finding also has ample support in the record. The dissent also notes that there is no evidence to suggest that the father's female companion represents any threat to the children's welfare. This is simply not true, since the record is replete with references to the religious teachings instilled in the children by their parents, which would certainly run contrary to a situation in which their father, while married to their mother, instead keeps the company of another woman. This discussion is not meant to imply a castigation of the appellant's morals or personal life, but merely to illustrate evidence of record, indicating circumstances which would not be in the best interests of the children, and can reasonably be avoided by the condition imposed.

Affirmed.

SPAETH, Judge, dissenting:

I think we should remand for further proceedings. To say why, I must state the facts rather more fully than has the majority.

The parties are in their forties, and have three children -- Alison, a girl, born in 1964; Trevor, a boy, born in 1966; and Jessica, born in 1969. Early in May 1975 the father separated from his family, and later that month sued for divorce, in

[ 263 Pa. Super. Page 253]

    an adjoining county. By agreement, the children remained with the mother.

The children visited their father, but before long a difficulty arose: the mother told the father he could have the children only on condition that one Alice Guise was not present. The father objected to this condition and in October 1976 filed a petition asking the lower court to grant him visitation according to a certain proposed schedule. The mother filed an answer; although the answer objected to some aspects of the proposed schedule, its principal point was that the court should allow visitation only on condition that

[t]he [father's] girlfriend, Alice Guise, will not be permitted to be present during any of the visitations until such time as a final decree in divorce is entered in the divorce case instituted by the [father].

Answer, para. 4(c)(3), Record at 6a.

The lower court heard testimony in December 1976. At the conclusion of the hearing the court dictated a temporary visitation order; generally, the order allowed visitation on alternate weekends and on certain holidays and during the summer. The court then stated that pending further argument, "we are also going to grant the prayer of the [mother] that the visitations occur outside of the company of Mrs. Guise." Record at 123a. On November 2, 1977, after hearing arguments, the court made its temporary order final. It is this final order from which the father has appealed.

The evidence before the lower court comprised, on the husband's part, the testimony of the husband, Alice Guise, Bernard Yannetti, who is a friend of the husband, and John MacDowell, who is minister of the church attended by the husband and Ms. Guise, and on the mother's part, her testimony. In addition, the court questioned the three children. The evidence disclosed the following facts.

Alice Guise is highly educated, with a Ph.D., and the mother of five boys, whose approximate ages are 19, 17 (twins), 13, and 11. Ms. Guise was the mother's best friend, and has known ...


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