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COMMONWEALTH PENNSYLVANIA EX REL. LETTIE H. W. v. PAUL T. W. APPEAL LETTIE H. W. (10/03/80)

filed: October 3, 1980.

COMMONWEALTH OF PENNSYLVANIA EX REL. LETTIE H. W.
v.
PAUL T. W. APPEAL OF LETTIE H. W.



No. 1396 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Division, No. 1196 of 1978.

COUNSEL

John W. Murtagh, Jr., Pittsburgh, for appellant.

Gerald E. Crowley, Ellwood City, for appellee.

Price, Hester and Cavanaugh, JJ. Cavanaugh, J., concurs in the result.

Author: Price

[ 281 Pa. Super. Page 264]

This appeal arises from the order of the court of common pleas awarding permanent custody of the parties' two daughters, aged three and nine years, to appellee, the natural father, and awarding partial custody and visitation to appellant, their natural mother. For the following reasons, we set aside that order and remand the case for further proceedings.

The parties herein were married in 1965, and their two daughters were born of this union. They lived together without separation until July 6, 1978, when appellee removed

[ 281 Pa. Super. Page 265]

    the furnishings and personal property from the parties' marital residence in White Township, Beaver County, to the home of one Frances Orzechowski in Beaver Falls, Beaver County. He also took his two daughters to live with Ms. Orzechowski, while he took up residence in Ellport, Lawrence County. These changes were accomplished without appellant's knowledge and while she was away for the day shopping with Ms. Orzechowski. Appellant had been told by appellee that he had arranged for the children to spend a two week vacation, beginning July 6, at his sister's home and that he was going away the next day, July 7, for a job interview in California. On July 7, when appellant returned home from shopping, she found the apartment vacant and a note telling her to contact a neighbor who would explain.

Appellant stayed with a neighbor until appellee called on July 10 to inform her that he was divorcing her and that he would not permit her to see the children. She then moved into the home of her sister and brother-in-law in Ridgewood, New Jersey and attended school to become an executive secretary.

Appellate review of child custody cases is of the broadest type, and thus, in carrying forth our duty, we are not bound by the inferences and deductions of the hearing court made from the facts it found. Bender v. Bender, 261 Pa. Super. 12, 395 A.2d 279 (1978); In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978). While we will not usurp the fact-finding function of the hearing court, we will undertake an independent examination of the evidence, and we need not accept a finding that has no competent evidence to support it. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1977); Tomlinson v. Tomlinson, 248 Pa. Super. 196, 374 A.2d 1386 (1977). To facilitate this broad review, we have consistently emphasized the necessity of the hearing judge providing us with a complete record and a comprehensive opinion advancing an explanation of the reasons underlying the custody decision. In re Custody of White, 270 Pa. Super. 165, 411 A.2d 231 (1979); Martincheck v. Martincheck, 262 Pa. Super. 346,

[ 281 Pa. Super. Page 266396]

A.2d 788 (1979). When the hearing judge complies with these requirements, his decision will not be reversed absent an abuse of discretion since he is in a superior position to evaluate the attitudes and demeanor of the witnesses. Jones v. Kniess, 249 Pa. Super. 134, 375 A.2d 795 (1977); ...


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