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COMMONWEALTH EX REL. HOWARD A. BERMAN v. BARBARA A. BERMAN (07/24/81)

filed: July 24, 1981.

COMMONWEALTH EX REL. HOWARD A. BERMAN
v.
BARBARA A. BERMAN, APPELLANT



No. 1976 October Term, 1979, Appeal from an Order of the Court of Common Pleas County, Civil Division, of Luzerne County, at No. 7532 of 1979.

COUNSEL

Abraham J. Brem-Levy, Philadelphia, for appellant.

Howard Berman, Wilkes-Barre, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a concurring opinion.

Author: Spaeth

[ 289 Pa. Super. Page 92]

This is a child custody case. We are all in agreement that the order of the lower court should be affirmed. Our only point of difference is regarding the standard of review that we should apply.

[ 289 Pa. Super. Page 93]

Judge HESTER says in his opinion that when the lower court has made a "penetrating and comprehensive inquiry into the facts," and has filed "a comprehensive opinion containing its findings and conclusions," its "decision will not be reversed absent an abuse of discretion." At 1068. Judge CAVANAUGH and I believe that statement to be too broad.*fn1

If the issue is whether we should reverse the lower court's findings of fact, then indeed we must defer to the lower court, and reverse only where in making the findings the lower court has abused its discretion. This is so because the lower court saw the witnesses and is therefore much more able to appraise their credibility than we. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). However, "we are not bound by [the lower court's] inferences or deductions . . . from the facts found." In re Custody of Hernandez, supra, 249 Pa. Super. at 290, 376 A.2d at 656. Instead, "[w]e must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate." Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 296, 426 A.2d 555, 557 (1981) (emphasis added); Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978). This is so because the scope of our review "in a child custody case is of the broadest type." Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1978); In re Custody of Myers, 242 Pa. Super. 225, 363 A.2d 1242 (1976).

An "abuse of discretion" occurs when the lower court's "judgment . . . is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . ." Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). If we were bound to defer, not only to the lower court's findings of fact but also its conclusions of law, except in a

[ 289 Pa. Super. Page 94]

    case of "abuse of discretion," we should be unable to make the independent judgment we must make in child custody cases. Instead of being "of the broadest type," our scope of review would be very narrow.

It is true that some of the cases support the formulation in Judge HESTER's opinion. See, e. g., In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978) (in which I joined). It is nevertheless an ...


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