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COMMONWEALTH EX REL. C. A. F. v. M. R. F. (10/10/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 10, 1980.

COMMONWEALTH EX REL. C. A. F.
v.
M. R. F., APPELLANT

No. 1853 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 79-1883.

COUNSEL

Neil Hurowitz, King of Prussia, for appellant.

Mark C. Schultz, Norristown, for Commonwealth, appellee.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn*

Author: Per Curiam

[ 281 Pa. Super. Page 259]

This case involves a custody dispute over the parties' four-year-old son, C.F. The parties separated in October, 1975 when the child was seven months old. They were

[ 281 Pa. Super. Page 260]

    divorced in October, 1978. After the separation and until January 3, 1979, the child resided with his mother, C.A.F. On that date the father, M.R.F., took custody of the child from the mother. The mother then filed a petition for writ of habeas corpus. The writ was issued and hearings were held on the matter before Judge Milton O. Moss. Custody was awarded to the mother. The father appeals. After a careful review of the record and the opinion of Judge Moss, we conclude that a remand is necessary.

The standard of review this court will exercise was recently set forth in In re Custody of White, 270 Pa. Super. 165, 169-170, 411 A.2d 231, 232-33 (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 (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.

[ 281 Pa. Super. Page 261]

Nevertheless, the trial judge specifically found that the father's interest in the child is genuine.

While the provisions made for the child during his father's working hours were fully explored on the record, it is not clear how the mother intends to care for the child while she is working. Although on cross examination the mother stated that the child would go to a nursery school, this information alone is not sufficient upon which to conclude that it serves the child's interest to a greater degree than those provisions made by the father.

On remand the lower court should consider the amount of time the mother spends working and the provisions she will make for the child's care in her absence. Only then will the trial judge be in a position to make an informed judgment as to the child's best interest.


*fn* President Judge JOSEPH F. O'KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.


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