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filed: September 7, 1979.


No. 2469 October Term, 1978, Appeal From the Order of September 20, 1978 of the Court of Common Pleas, Montgomery County, Civil Action - Law at No. 78-13847


Mark B. Dischell, Lansdale, for appellants.

Edward J. Hollin, Lansdale, for appellee.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 269 Pa. Super. Page 348]

This is an appeal by a father from an order denying his petition for custody of two minor children, Heather, age four, and Brian, age two and one-half, and granting custody to their mother.

Paul and Terri Kimmey, the parties herein, were married in May, 1973. Mr. Kimmey left the marital home in August 1977, but returned in November of that year. The parties continued to live together until August 3, 1978, when Mrs. Kimmey, after a violent argument with her husband, took the children and left home. Mr. Kimmey filed a petition for custody, and a hearing was held on September 18, 1978.

Mr. Kimmey, a twenty eight year old college graduate, was residing in the marital home at 343 West 5th Street, Lansdale, at the time of the hearing. He was employed and earned approximately $11,000 per year. Mrs. Kimmey was employed as a manager in a local restaurant. She and the children were living in a three bedroom condominium with Nadine Dalrymple and Mrs. Dalrymple's husband and child at the time of the hearing.

Mr. Kimmey testified at the hearing. His testimony was that his wife did not properly supervise, bathe, or care for the children, was not affectionate with them, and cursed at them. He also said that on several occasions she had forgotten to give Brian his daily medication to control his mild epilepsy.

Dr. Wesley Sandler, a psychologist, testified that he had examined Mr. Kimmey and the children and had found Mr. Kimmey to be a responsible individual who was concerned with his children. He further testified that he had performed psychological testing upon Heather and from these tests determined that she best related to her father. However, Dr. Sandler had not tested Mrs. Kimmey and had no basis for comparing the relative fitness of both parents.

Mrs. Ellen Piltz, a next door neighbor, testified that she had known both parties for approximately three years. She said that when Mr. Kimmey was taking care of the children

[ 269 Pa. Super. Page 349]

-- he took care of them for a period when he was unemployed -- they were kept clean and were well supervised but that when he left the home during the separation and the children were with Mrs. Kimmey alone, they were not well supervised*fn1 and were dirty. In describing what she

[ 269 Pa. Super. Page 350]

    meant, she said that the children's clothes were always food-stained and that they themselves were unwashed. Heather's hair, according to Mrs. Piltz, was filthy and her diapers were rarely changed and were overflowing with feces.*fn2 She also testified that the children were more affectionate with their father than with their mother; that the mother often had male visitors stay overnight; that the

[ 269 Pa. Super. Page 351]

    mother did not properly feed*fn3 or discipline the children; and that the mother did not keep a clean home.

Caterina Messina, a fifteen year old neighbor of Mr. Kimmey, also testified. She said that she had known both parties for approximately three years and was friendly with both of them. Her testimony was similar to Mrs. Piltz's with respect to Mrs. Kimmey's failure to keep the children or the house clean. She also said that she had seen at least one man stay overnight with Mrs. Kimmey and that the very next day Heather had told her that "last night my mother's friend sleep over and sleep in my mother's bed and she sleep in my bed because my mother's bed was broken." N.T. 88a.

Carol Clelland, another neighbor, testified that she babysat Heather and Brian for approximately eight months during the parties' two separations. Her testimony was also unfavorable to Mrs. Kimmey. According to Mrs. Clelland:

Q. How about taking care of the children? Did you see Mr. Kimmey take care of the children?

A. Yes, I have.

Q. How does he take care of them?

A. They are always clean. Their hair is combed. He cooks out a lot on the grill. I thought he took very good care of them. He gave them baths, you know. I knew they were clean when he had them.

Q. How about when he didn't have them, what happened?

[ 269 Pa. Super. Page 352]

A. Well, I was watching the children when they were separated, and I would have --

Q. You said you were watching. Were you baby-sitting for the children?

A. Yes, I was. I was baby-sitting when they were separated. This is the first time. Heather and Brian would come to my home in the morning about seven o'clock. Old diapers were still on them from the night before.

Dirty shirts from the day before. She would never wash them up or anything, before they got to my house. I would feed them breakfast. And then I had occasion to have to give them baths and I would find that scum on the back of their neck. The head ...

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