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COMMONWEALTH PENNSYLVANIA v. JOSEPH M. APPEAL BARBARA M. (04/03/81)

filed: April 3, 1981.

COMMONWEALTH OF PENNSYLVANIA, EX REL. BARBARA M.
v.
JOSEPH M. APPEAL OF BARBARA M.



No. 2223 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division No. 77-00724 Custody, 1977.

COUNSEL

Elisabeth Petry, Philadelphia, for appellant.

John J. D'Angelo, Philadelphia, submitted a brief on behalf of appellee.

Price, Watkins and Hoffman, JJ. Watkins and Hoffman, JJ., concur in the result.

Author: Price

[ 286 Pa. Super. Page 54]

Appellant, Barbara M. and appellee, Joseph M. the natural parents of Demian and Molly M.,*fn1 were married on August 8, 1970, separated on March 17, 1976, and divorced on January 4, 1978. The couple's two children resided with their parents until their separation in March, 1976. Thereafter, both children remained in appellant's custody until August, 1977, when appellee failed to return Demian to his mother following a visit with his grandparents.*fn2 Although appellant sought to employ self-help methods to regain custody of Demian, she was unsuccessful. She thus filed a petition seeking lawful custody of her son on October 19, 1977. The petition was denied and this appeal followed.

Appellant contends that the trial court erred in (1) according excessive weight to Demian's expressed preference to remain with his father; and (2) separating Demian and his sister since there was no compelling reason to do so. In addition, appellant argues that the order granting custody to appellee is not in Demian's best interest because she can provide Demian with (1) medical care which he does not now receive; and (2) a living environment that is far more stable than that in which he currently resides. For the reasons that follow, we disagree with these contentions and thus affirm the order of the trial court.

It is axiomatic that the singular concern in a custody proceeding is the best interest and welfare of the children involved. See Wenger v. Wenger, 267 Pa. Super. 134, 406 A.2d 555 (1979). To ensure that proper attention is addressed to this concern, we are obligated to exercise the broadest scope of review on a custody matter that is before

[ 286 Pa. Super. Page 55]

    us on appeal. Commonwealth ex rel. Drum v. Drum, 263 Pa. Super. 248, 251, 397 A.2d 1192, 1193 (1979). Nonetheless, since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his "determination of custody should be accorded great weight." Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See e. g., Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court's determination, we will defer to it, absent an abuse of discretion, if the facts have been thoroughly investigated by the judge, that investigation is documented by a complete record, and a comprehensive analysis of the judge's findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa. Super. 95, 380 A.2d 1299 (1977). Instantly, the trial judge has complied with this formula and thus deference to his determination is warranted.

The facts adduced through the course of the several hearings held in this matter are neither complicated nor disputed. Prior to their separation and consequent divorce, appellant and appellee not surprisingly shared the same lifestyle. Both parties strictly adhered to a macrobiotic diet consisting of whole grains, locally grown vegetables, various soups, beans, noncitrus fruits, nuts, juices, and herbal teas. Dairy food, meat and sugar were excluded from their diet. (N.T. 27, Feb. 9, 1978). In addition, appellant and appellee slept on the floor in a Japanese futon, a device similar to a sleeping bag, allegedly because of its therapeutic benefits. (N.T. 16, Feb. 9, 1978). Since their divorce, appellant no longer abides by the macrobiotic diet or the "futon" sleeping custom. Appellee and Demian, however, continue to practice both.

Appellant is unemployed and has no present plans to seek employment. Her time is thus divided between caring for

[ 286 Pa. Super. Page 56]

    her daughter Molly and attending the Delaware County Community College on a part-time basis. While appellant attends class, Molly attends a day care center located on the college campus. Welfare, federal housing assistance, and an allowance from her parents provide appellant's sole means of support.

A one-time apprentice barber, appellee's work record is slightly more impressive. Although he was unemployed for the balance of the period in which Demian was in his custody prior to the court's order herein, appellee had secured a job as an interior painter with a construction company as of the date of the most recent hearing below. Appellee testified that a caretaker would be available for Demian if one was needed as a result of his new work hours. This position would allegedly be filled by a couple with whom appellee and Demian are familiar and with whom they share the same lifestyle. (N.T. 28, July 12, 1978). Appellee also received at least a partial welfare grant as a supplement to his unsteady income.

Appellant's home consists of a three bedroom, air conditioned apartment with two baths, a balcony, and the right to use a swimming pool and playground situated in the apartment complex. In contrast, appellee has only a small, two room apartment located in center city Philadelphia. (N.T. 31, Feb. 9, 1978). Nonetheless, believing as we do, that material things are, relatively speaking, less important to a child of seven than love, friendship and stability, we must agree with the trial judge's conclusion that "the parties are equally capable of caring for . . . Damien [sic: Demian]." Docket Entry, March 1, 1978. Accordingly, our inquiry must focus on the singular concern in such cases, namely, the manner in which Demian's best interest and welfare may be served.*fn3

[ 286 Pa. Super. Page 57]

Appellant initially argues that the order awarding custody to appellee is not in Demian's best interest since Demian will allegedly be deprived of proper medical attention if permitted to remain in ...


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