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COMMONWEALTH PENNSYLVANIA EX REL. RICHARD N. DAVIS v. LAURA L. DAVIS (08/03/79)

August 3, 1979

COMMONWEALTH OF PENNSYLVANIA EX REL. RICHARD N. DAVIS, JR.
v.
LAURA L. DAVIS, APPELLANT



No. 723 October Term, 1978, Appeal from Orders in the Court of Common Pleas of Delaware County, Civil Action-Law, No. 76-16719, December, 1977.

COUNSEL

William T. Luskus, Media, for appellant.

Charles F. Mayer, Media, for appellee.

Price, Dowling and Gates, JJ.

Author: Gates

[ 268 Pa. Super. Page 402]

This is an appeal from orders of the court below granting custody of two minor children to their father. The mother filed this appeal. For the reasons set forth herein we vacate the orders of the lower court and remand for a new hearing and a full opinion by the hearing judge.

The parties to this appeal separated on October 26, 1976. The natural mother had custody of the minor children, subject to visitation rights on the part of the father until the orders appealed from were entered in the court below.

The record discloses that the trial judge conducted hearings on November 18 and December 14 of 1977. On the latter date the hearing judge entered an order granting custody to the father, appellee here. The mother was given visitation rights. On December 23, 1977 the hearing judge entered an additional order clarifying one aspect of the December 14, 1977 order with respect to the summer temporary custody rights of the mother. This appeal followed.

The hearing judge completed his term of office as a judge of the Court of Common Pleas of Delaware County on December 31, 1977. Consequently the opinion in support of the hearing judge's orders was written by another Common Pleas Judge of Delaware County.

Although the scope of review in this court in child custody cases is of the broadest type, our power is not without limitations. In the past we have taken great care to stress:

". . . this broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of

[ 268 Pa. Super. Page 403]

    the subject can best be determined by the judge before whom they appear . . ." Commonwealth ex rel. Harry v. Eastridge, 374 ...


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