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BONNIE TOKAREK PALMER v. EUGENE TOKAREK V. GILDO BERTETTO AND PEARL BERTETTO. APPEAL BONNIE TOKAREK PALMER AND GILDO BERTETTO AND PEARL BERTETTO (07/18/80)

filed: July 18, 1980.

BONNIE TOKAREK PALMER
v.
EUGENE TOKAREK V. GILDO BERTETTO AND PEARL BERTETTO. APPEAL OF BONNIE TOKAREK PALMER AND GILDO BERTETTO AND PEARL BERTETTO, HIS WIFE



No. 806 April Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division-Law of Westmoreland County at No. 5290 of 1978.

COUNSEL

Thomas D. MacMullan, Pittsburgh, for appellants.

Gary F. Selway, Greensburg, for appellee.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Cavanaugh

[ 279 Pa. Super. Page 461]

This appeal involves a dispute over custody of Paul John Tokarek, age eight. Three parties are involved in this action: the child's father (Eugene Tokarek), the child's mother (Bonnie Tokarek Palmer), and the maternal grandparents (Gildo and Pearl Bertetto). Eugene Tokarek filed a petition for custody in June of 1978. Two years prior to this a court order was entered placing custody in the mother with reasonable visitation to the father. Mr. and Mrs. Bertetto were granted permission to intervene and cross-petition

[ 279 Pa. Super. Page 462]

    for custody of P. J. Following a hearing, the lower court awarded custody of P. J. to his father with liberal visitation to Mr. and Mrs. Bertetto. Mrs. Palmer was awarded visitation at such times as the child is with the maternal grandparents. Due to the pendency of this appeal, the lower court granted a supersedeas directing that P. J. remain with his grandparents with visitation rights to Mr. Tokarek.

P. J.'s parents were married in February, 1971 after discovering that Mrs. Palmer was pregnant. After the marriage the father continued to live with his parents and the mother remained at her parents' home. On weekends the couple stayed at the Bertetto's but several months before P. J. was born they separated. They were divorced in 1972.

Following P. J.'s birth the mother returned to work and the grandparents assumed the normal duties of parents to P. J. At all times since his birth, P. J. has lived with his maternal grandparents save for a brief period in 1976. The child's mother also resided there until 1976 when she remarried and moved back to Rhode Island, taking P. J. with her. However, because of the child's anxiety at being separated from his grandparents, his mother returned P. J. to Pennsylvania.

P. J. has been cared for by his grandparents as if he were their own son. They have provided a home and have provided for his education, religious training and social needs. Although P. J. knows that the Bertetto's are not his natural parents, he refers to them as "Mum and Pop." The child's father has had visitation rights by order of court since August 3, 1971. In September, 1974 the court adjusted the visitation order to include weekend visitation. Although the father has had to enlist the aid of the court and the county Domestic Relations Department in order to enforce his visitation rights, he has made a consistent and persistent effort to visit P. J. since 1973. Concerning his obligation to support P. J., a support order was entered in April of 1971 and payments by the father pursuant to that order were irregular,

[ 279 Pa. Super. Page 463]

    resulting in an attachment of his wages in October, 1972. Since that time payments have been made on a regular basis. There are currently no arrearages.

The petition for custody filed in 1978 was the first attempt made by the father to gain custody of P. J. The father remarried in 1978 and procured living accommodations in a five-room house. The present Mrs. Tokarek has a son by a prior marriage who resides with her and P. J.'s father. The house has two bedrooms one for Mr. and Mrs. Tokarek and another, containing twin beds, for the two boys.

At trial two expert witnesses, Dr. Schachner, a psychologist, and Dr. Garrity, a psychiatrist, were called to testify as to the effect of a change of custody on P. J. Dr. Schachner, a witness for the appellants, testified that P. J. would suffer severe trauma if separated from his grandparents. Dr. Garrity disagreed, claiming that P. J. could withstand the pressure without permanent damage to his psyche. The court, finding both experts equally qualified, placed more emphasis on Dr. Garrity's report because of her disinterested posture as a court retained expert.

The lower court found that P. J.'s best interests would be served by awarding custody to his natural father with liberal and frequent visitation by the maternal grandparents. The standard of review this court will exercise was recently set forth in In re Custody of White, 270 Pa. Super. 165, 167-169, 411 A.2d 231, 232-3 (1979).

[I]t is well established that the scope of review of this court in such disputes is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978). Although we will not usurp the fact-finding function of the trial court, we are not bound by deductions or inferences made by the hearing judge from the facts as found. Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665

[ 279 Pa. Super. Page 464]

(1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). Because of the Commonwealth's legitimate and overriding concern for the well-being of its children, we are required to render an independent judgment based on the evidence and testimony and make such order on the merits of the case as to effect a just result. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1977); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 245 A.2d 663 (1968). So as to facilitate this broad review, we have consistently emphasized that the hearing court must provide us not only with a complete record, Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974), but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. Martincheck v. Martincheck, 262 Pa. Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). Absent an abuse of discretion, we will not reverse a hearing judge who complies with these requirements.

I.

In awarding custody to the father, the lower court characterized the case as a dispute between a natural parent and the grandparents. As such the lower court allocated the burden of proof as is appropriate in such cases: the parents have a prima facie right to custody which will be forfeited only if convincing reasons appear that the child's best interests will be served by an award to a third party. Hooks v. Ellerbe, 257 Pa. Super. 219, 390 A.2d 791 (1978); Ramos v. Rios, 249 Pa. Super. 487, 378 A.2d 400 (1977); In Re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977).*fn1 Appellants

[ 279 Pa. Super. Page 465]

    argue that the case is actually a dispute between two natural parents. If such were the case, the burden of proof would be borne equally by the contending parents, each being required to show that an award to him or her would be in the child's best interest. See Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Lewis v. Lewis, 267 Pa. Super. 235, 406 A.2d 781 (1979); Rummel v. Rummel, 263 Pa. Super. 97, 397 A.2d 13 (1979). The lower court acknowledged that "if the parties stood in equal positions, this Court would have no difficulty in awarding custody to the grandparents because of their proven ability to provide for this child and because of the trauma which will undoubtedly result in this child because of a change in environment." Appellants note that the father sought custody from the mother and these parties' names appear on the original pleadings. The grandparents intervened because of their involvement in the case. However, looking beyond form to substance, we find appellants' argument untenable.

Appellants attempt to distinguish this case from other cases involving disputes between a third party and a natural parent. Here, they argue, the parent seeks to have the child remain with the third party whereas in Hernandez, as well as Hooks, the third parties sought custody for themselves. Appellants cite no authority for such a distinction, nor does any exist. To permit such a distinction would, in effect, give the third party equal status with a natural parent as long as the parent not seeking custody prefers that the child remain with the third party. Such a result would be inconsistent with the court's overriding concern for the best interests of the child and the recognized rights of natural parents to custody.

The lower court explained the unusual position of the parties in the following finding of fact:

While the natural mother is a party to this proceeding, she does not seek custody for herself; rather, her desire is that the child remain with her parents . . .

[ 279 Pa. Super. Page 466]

The record bears this out, although the grandparents and mother characterize their claim as one for joint custody or custody in the mother alone. The mother stated that she has no intention of bringing P. J. to live in Westmoreland County where she resides with her present husband and baby daughter. P. J. and the Bertettos live in Allegheny County. The Bertettos act as parents in every way to P. J. and have done so since his birth. The mother indicated during direct examination that she wishes this to continue:

Q. So now, without using any psychological terms, just tell the Court again in your own words what you think is the best for P. J.

A. He loves his mom and dad, which are my parents, in regard that they raised him. He loves them.

Q. All right. What do you believe or where do you think P. J. should be?

A. With them.

(N.T., April 3, 1979, ...


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