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CUSTODY SHARI L. FRANK AND KATHY A. FRANK (12/19/80)

filed: December 19, 1980.

IN RE CUSTODY OF SHARI L. FRANK AND KATHY A. FRANK, MINOR CHILDREN. APPEAL OF WANDA LEE FRANK


No. 1845 October Term 1978, Appeal from the Order of the Court of Common Pleas of Cumberland County at No. 2114 Civil 1976.

COUNSEL

Judith Calkin, Carlisle, for appellant.

Robert Frank, Pittsburgh, appellee, in pro. per.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Hoffman, JJ. Price, J., files a dissenting opinion in which Wickersham, J., joins. Hester, J., files a dissenting statement.

Author: Spaeth

[ 283 Pa. Super. Page 231]

This is an appeal from an order granting custody of two children to their mother "subject to temporary supervision by Cumberland County Children's Services." The appeal is by the mother.*fn1 She contends that since the action arises on her petition for custody of her children, and not under the Juvenile Act,*fn2 the lower court had no power to make its grant of custody subject to such temporary supervision.

Appellant, Wanda Lee Frank, and Robert E. Frank, Jr., were married on February 17, 1962. They had five children: Robert E., born October 1, 1962; Thomas J., born August 15, 1963; Charles, born June 4, 1965; Shari L., born August 15, 1966; and Kathy A., born April 19, 1968.

In June 1976, appellant and Robert Frank separated. Charles had been placed for adoption, in 1967, but the other four children remained with their father. Appellant petitioned the lower court for custody of the children. After a hearing in July 1976, the court gave custody of Robert and Thomas to their father. Shari and Kathy were not included in this custody order, apparently because they were by then living with their paternal grandparents in Arizona.

[ 283 Pa. Super. Page 232]

In November 1976, appellant and Robert Frank were divorced. Sometime in May 1977, Shari and Kathy returned from their grandparents' home and began living once again with their father and brothers, Robert and Thomas. In November 1977, Shari and Kathy moved with their father and two brothers to Virginia. In January 1978, appellant obtained custody of Shari and Kathy, with their father's consent, and returned with them to Cumberland County. Robert and Thomas continued to live with their father in Virginia.

On March 8, 1978, appellant petitioned the lower court for an order confirming her custody of Shari and Kathy. The girls' father did not oppose this petition. A hearing was held on April 5, 1978, at which appellant was represented by a law student who appeared pursuant to Supreme Court Rule 11 [now Bar Admission Rules 321-22]. At the end of the hearing, the lower court granted custody of Shari and Kathy to appellant, subject to temporary supervision by Children's Services. The lower court made no findings of fact, nor did it otherwise explain its order. After this appeal was taken, the lower court filed an opinion, which reads in its entirety as follows:

Having been advised that an appeal has been taken in the above matter, this memorandum is prepared pursuant to Pa.R.A.P. 1925.

The petitioner's application for custody was unopposed and the sole basis of the appeal is that the court directed that temporary supervision of the children be exercised by the Cumberland County Children's Services. The first notice that this provision was offensive to the petitioner appeared when the notice of appeal was received. A review of the record of the testimony taken at the time of the hearing fails to disclose any objection to this provision in the order and, therefore, serious question arises as to whether there is any basis for the appeal.

The situation involving the Franks has been before this court on more than one occasion. It is because of the stormy relationship that has existed between the two

[ 283 Pa. Super. Page 233]

    parents and the allegations of improper care given to the children that the court directed Cumberland County Children's Services to keep in touch with the situation. At the time of the order, and now, we feel that the welfare of the children requires that the Cumberland County Children's Services should keep in touch with the situation.

-1-

Before we may consider this appeal on its merits, we must examine the lower court's suggestion that because appellant's attorney failed to object to the imposition of temporary supervision by Children's Services, "serious question arises as to whether there is any basis for the appeal." We find no merit in this suggestion.

When an action in assumpsit is tried by a judge sitting without a jury, a party who objects to the judge's decision must file exceptions, and "[m]atters not covered by exceptions are deemed waived . . . ." Pa.R.Civ.P. 1038(d). This procedure is also applicable to actions in trespass, Pa.R.Civ.P. 1048, and we have held that the failure to file exceptions will preclude a party from challenging the lower court's decision. Matczak v. Matczak, 275 Pa. Super. 164, 418 A.2d 663 (1980); Gibson v. Miller, 265 Pa. Super. 597, 402 A.2d 1033 (1979); Canada Dry Bottling Co. v. Mertz, 264 Pa. Super. 480, 400 A.2d 186 (1979); Blake v. Mayo Nurs. & Convales. Homes, 245 Pa. Super. 274, 369 A.2d 400 (1976). However, exceptions are not required in a child custody case; the order awarding custody is a final order, and, therefore, is the order from which any appeal to this court is to be taken, without the necessity of any intervening proceedings, such as exceptions or other review by the lower court.

Furthermore, we have held that the concept of waiver, invoked by the lower court, is inappropriate in a child custody case. In Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976), one issue involved the hearing judge's failure to order the child's statement transcribed. In considering this issue, we said:

[ 283 Pa. Super. Page 234]

Counsel for the father has argued in his brief that the error of the hearing judge in not ordering a transcript has been waived because counsel for the mother did not complain of it at the time, "[when it] could have been eradicated." (Brief for Appellee, at 11.) This argument mistakes the nature of a custody hearing. The sole purpose of the hearing is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-08, 296 A.2d 625, 627 (1972) ("the best interest of the child is paramount"); Commonwealth ex rel. Holschuh v. Holland-Moritz, supra, 448 Pa. at 444, 292 A.2d at 383 ("all other considerations are subordinate"). It is David's future we are determining; he had a right to expect that the hearing judge would follow prescribed procedures. That right was not one that the hearing judge could ignore, or that either parent could waive. Cf. Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974) (allocatur refused). 240 Pa. Super. at 389-90, 361 A.2d at 311.

See also Lewis v. Lewis, 267 Pa. Super. 235, 406 A.2d 781 (1979).

Finally, on the record here we should be particularly unwilling to find waiver. As mentioned above, appellant was represented at the hearing before the lower court by a law student. The student attorney called appellant to the stand and questioned her briefly; the entire interrogation comprises three and a half pages of the record. Then the lower court interrupted the student attorney's examination of appellant, and itself assumed the examination; the court's interrogation of appellant comprises two pages of the record. After completing its examination of appellant, the court began to interrogate Patricia Gillingham. Ms. Gillingham was a representative of Cumberland County Children's Services. She was present, so far as we can tell, without any prior notice to either appellant or her student attorney. The court interrogated her briefly about Children's Services' past involvement with the Frank children. When the student attorney objected on the ground that Ms. Gillingham

[ 283 Pa. Super. Page 235]

    had not been sworn, the court stated: "Well, don't make any objection to it, I'm going to give the children to her [appellant]." N.T. at 8. The court then completed its examination of Ms. Gillingham, and without further addressing itself to the student attorney, entered the order that is the subject of this appeal. Thus, during a short hearing, the court twice indicated that appellant's student attorney should keep still and let the court conduct the proceeding as it thought best: first, when the court stopped the student attorney's interrogation of her client and proceeded to interrogate the client itself; and second, when the court told the student attorney not to make (an entirely proper)*fn3 objection to its interrogation of Ms. Gillingham. It is evident that counsel, inexperienced in the extreme, was overwhelmed, if not intimidated, by the court. In these circumstances, to penalize appellant, by holding that her right to challenge an order affecting an interest as precious as a mother's interest in her children had been lost because of her attorney's failure to object, would be most inappropriate.

-2-

As will be recalled from the statement of the history of the case, the lower court had before it appellant's second petition for custody. Appellant's first petition was filed in 1976, and was for custody of all four of her children. The lower court denied that petition; custody of the two boys was awarded to their father, and the two girls were permitted to continue to live with their paternal grandparents, and later they went to live with their father. The present case arises on appellant's second petition, filed in 1978; by it appellant seeks custody only of the two girls; apparently she and the children's father have agreed that she may have custody of the girls, while he is to have custody of the boys.

[ 283 Pa. Super. Page 236]

Therefore, stated generally, the issue before the lower court was as follows: In 1976, on the mother's petition, the court had resolved a dispute between the mother and father regarding the custody of their four children so as to deny the mother custody of any of the children. Had circumstances so changed that, in 1978, on the mother's second petition, the court should grant the mother custody of two of the children?

-a-

In resolving the issue thus presented, the lower court was governed, as we are governed, by the Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92, which provides as follows:

In all cases of dispute between the father and mother of such minor child, as to which parent shall be entitled to its custody or services, the judges of the courts shall decide, in their sound discretion, as to which parent, if either, the custody of such minor child shall be committed, and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child.

The obligation to apply the standard thus set forth has frequently been recognized. See, e. g., Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980) ("in every custody dispute the fundamental issue is the best interest of the child"); Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Lewis v. Lewis, supra; Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1979); In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). In deciding what is in the best interest of the child, the court may not resort to presumption or otherwise shift the burden of proof; rather, the burden of proof is shared equally by both parents, and the court must award custody as the evidence dictates. Ellerbe v. Hooks, supra; Lewis v. Lewis, supra; In re Custody of Hernandez, supra.

-b-

It appears to have been the lower court's opinion that the Act of June 26, 1895, supra, authorized it to require appellant

[ 283 Pa. Super. Page 237]

    to submit, in her care and custody of Shari and Kathy, to the supervision of Children's Services. Thus in explaining its order imposing supervision, the court states in its opinion that "we feel that the welfare of the children requires that the Cumberland County Children's Services should keep in touch with the situation." (Emphasis added.) This statement reflects a fundamental misconception of child custody law.

The interest of a parent in the care and custody of his or her children is one of the strongest interests recognized by the law. Ellerbe v. Hooks, supra; In re Custody of Hernandez, supra; In the Interest of LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); In re Rinker, 180 Pa. Super. 143, 117 A.2d 780 (1955). It comes before the courts "with a momentum of respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (FRANKFURTER, J., concurring). This momentum derives from "[o]ur determination . . . that the blood relationship of parenthood has traditionally served and continues to serve as our society's fundamental criterion for allocating control over and responsibility for our children, and that without some showing of harm, the courts should not interfere with that arrangement." Ellerbe v. Hooks, supra, 490 Pa. at 369, 416 A.2d at 514-15 (citing and quoting from Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) ("It is cardinal with us that the custody, ...


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