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COMMONWEALTH PENNSYLVANIA EX REL. E. H. T. v. R. E. T. (04/03/81)

filed: April 3, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. E. H. T.
v.
R. E. T., SR. APPEAL OF E. H. T.



No. 2534 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Berks County, Civil Division, No. 130 September Term, 1972.

COUNSEL

Gilbert J. Scutti, Philadelphia, for appellant.

James M. Potter, Reading, for appellee.

Price, Watkins and Hoffman, JJ. Hoffman, J., files a concurring opinion.

Author: Price

[ 285 Pa. Super. Page 447]

The instant appeal is from the order of the Court of Common Pleas of Berks County granting custody of A. and H.*fn1 to appellee, R.E.T., Sr. Appellee and appellant, E. H. T., natural mother of A. and H., were married in January, 1967, separated in April, 1972, and subsequently divorced. The couple's two children resided with their parents until their separation. Thereafter, with the exception of scheduled visits with their father, the children remained in their mother's custody until September 8, 1978, the date of the order awarding custody to appellee.*fn2

[ 285 Pa. Super. Page 448]

Appellant argues that the order granting custody to appellee is not in the best interest of the children because the court allegedly (1) disturbed a successful custody arrangement without a sufficient reason; (2) ignored the eldest child's expressed preference to live with his mother; and (3) utilized the decree to penalize appellant for moving to North Carolina with the children.*fn3 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 whenever a custody matter is before 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 (1973); 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 judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge's findings is

[ 285 Pa. Super. Page 449]

    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.

Appellant first contends that the trial court erred by interfering with the existing custodial relationship since no evidence was adduced to prove that she was an unfit mother. We cannot agree. Although one's desire to relocate his or her place of residence hardly suggests a lack of stability or renders him or her unfit to serve as a custodial parent, the manner in, and care with, which such a relocation is accomplished may serve as one indication of that person's stability and consequent parental fitness. We find this to be particularly true on the record sub judice.

On one occasion, for example, July 1, 1978, appellant left her home in Pennsylvania for a vacation with her two children. The trio ventured to North Carolina, a state in which they had neither family nor friends prior to their arrival. Cf. Davidyan v. Davidyan, 230 Pa. Super. 599, 327 A.2d 145 (1974) (custody awarded to mother despite her intent to remove child to Scotland, since, among other things, mother's family resided in Scotland and the child had also been there on some occasions). On July 15, only fourteen days after the vacation began, appellant decided that she and her children would become residents of North Carolina. Seven days later, on July 22, appellant journeyed alone to Pennsylvania to supervise the transfer of her family's belongings to their new home. At this same time, her children remained in North Carolina with people who, days earlier, had been complete strangers. Clearly, appellant's decision to reside in North Carolina was, as the trial judge concluded, "spur of the moment." Slip op. at 11.

Nor are we persuaded by appellant's contention that one of the factors which convinced her to remain in North

[ 285 Pa. Super. Page 450]

Carolina was the quality of education that her children could receive by so doing See N.T. 153. First, there is nothing in the record to suggest that the children's education was in need of improvement. The children had been enrolled in enrichment programs and their levels of achievement reflected the quality of those programs. Second, even assuming that a change in schools was warranted, appellant's argument as to the quality of the education is questionable. Appellant had not even decided to move to North Carolina until July 15, 1978. She paid the tuition to enroll her children in the Heritage Christian Day School, however, only six days later, on July 21, 1978. It thus defies reason to suggest either that appellant thoroughly investigated the quality of the Heritage School or the other alternatives available to the children in North Carolina or in some other locale. This conclusion is buttressed by the fact that the Heritage School had not been accredited as of the date of the children's enrollment and had not even been completely constructed as of the date of their alleged "investigatory" visit. N.T. 126-27.

Thus, rather than a factor precipitating the move, the children's welfare, educational or otherwise appears to have been given little, if any, consideration. Even if parental fitness had been the controlling question,*fn4 therefore, there is ...


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