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L. D. v. B. D. APPEAL L. D. (10/30/81)

filed: October 30, 1981.

L. D.
v.
B. D. APPEAL OF: L. D.



No. 747 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division - Law of Bucks County at No. A06-80-00177-C-10-3.

COUNSEL

Peter J. Verderame, Langhorne Manor, submitted a brief on behalf of appellant.

Jack J. Hetherington, New Britain, for appellee.

Spaeth, Popovich and Montgomery, JJ.

Author: Spaeth

[ 291 Pa. Super. Page 591]

This is a child custody case. The lower court awarded custody of a boy, now five years old, to his mother. The boy's father has appealed. The lower court held a full hearing and filed a comprehensive opinion. We therefore accept the court's findings. We do not, however, accept the court's inferences from its findings, for in drawing those inferences, the court did not treat the parties equally but, rather, favored the mother. In our judgment, the facts, as found by the lower court, show that the father will be the better custodial parent. We therefore reverse and remand.

In custody cases the paramount concern is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Cutler v. Cutler, 246 Pa. Super. 82, 369 A.2d 821 (1977). Therefore, the scope of appellate review is not limited to determining whether the lower court has abused its discretion. Berman v. Berman, 289 Pa. Super. 71, 432 A.2d 1066 (1981). Instead, it is of the broadest type. In re Leskovich, 253 Pa. Super. 349, 385 A.2d 373 (1978). "Although we will not nullify the factfinding function of the hearing judge, we are not bound by deductions or inferences made by the lower court from facts as found." Davidyan v. Davidyan, 230 Pa. Super. 599, 603, 327 A.2d 145, 147 (1974). "We 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).

[ 291 Pa. Super. Page 592]

Some of the facts are in dispute. In its opinion, however, the lower court states its appraisal of the credibility of the witnesses, Slip op. at 6-7, 13, 14, and we accept that appraisal. Most of the facts -- at least, the essential facts -- are not in dispute.

The parties were married in 1973. The father was 38 years old, the mother, 26. It was the father's first marriage, the mother's second. The mother's first marriage ended in divorce. She had three children by her first marriage; Sean, almost 17 years old at the time of the hearing before the lower court; Lisa, 15 at the time of the hearing; and Theresa, who was killed some five years ago in an accident. Peter, the subject of this dispute, was born April 8, 1976; he was a bit under five years old at the time of the hearing.

Before their separation, the parties and the three children lived in a three-bedroom home, where Peter shared a room with Sean. During most of the period at issue, the father worked during the week as a maintenance painter at Temple University and alternated working nights with the mother at a bar of which he was a co-owner. The mother has also worked, but after Peter's birth until the sale of the bar, in the Spring of 1979, she spent most of her time at home with the children.

In February 1977 the father's fifteen year old nephew, Paul, began living with the family. He "had gotten into trouble in California with drugs and forgeries," slip. op. at 4, and had come to live with the family at the suggestion of his probation officer, who thought that a new environment might contribute to his rehabilitation. Within two months of his arrival, the relationship between Paul and the mother developed into a sexual affair, "which continued on an off and on basis until several months before Paul returned to California in late 1979." Slip op. at 4. The father was unaware of the mother's affair with Paul until she told him about it during the summer of 1979; the father testified, without contradiction by the mother, that after disclosing her affair the mother told him she had become pregnant by Paul and had had a miscarriage. N.T. 1/15/81, 89.

[ 291 Pa. Super. Page 593]

It is evident that the parties' marriage was destroyed by the mother's affair. The parties underwent counseling, but it could not restore the marriage. The mother testified that the father said he forgave her, but that "[h]e was very hurt," and although he tried, was unable to put the matter behind them. N.T. 2/24/81, 61. The father's testimony showed that he no longer trusted the mother. N.T. 1/15/81, 49.

The marriage was further damaged by an incident that occurred about March 1980. One night the mother brought home with her an 18 year old girl, named Debra, with whom she worked. The mother explained that Debra "had had a disagreement with her mother" and did not want to go home. N.T. 2/24/81, 55. Later that night the father heard noises coming from Sean's room, and upon investigating, discovered Sean and Debra engaged in sexual intercourse. The father became very upset, and the ensuing violent argument only ended with the arrival of the police and also, of the mother's father, who took the mother and all the children to his home until matters calmed down. After several days the mother and children returned.

However, the mother vacated the parties' bedroom and slept in the living room. N.T. 2/24/81, 93-94. Also, she started going out a good deal; she testified that she went "[p]robably twice a week" to a tavern, returning sometimes at 5:00 in the morning. Id. at 87-88. The record is not quite clear just when this started, but in any event, early in July she met John M. and they shortly became intimate. Within a few weeks they went on a camping trip together, and, the mother testified, by August they had had sexual relations. N.T. 2/24/81, 75.

About this time -- the exact date does not appear of record -- the father started an action in divorce. On August 1, 1980, while the mother was away, the father left the family home, taking Peter with him. He has since established a new residence at the home of Joseph and Carol Finnigan. Mr. Finnigan is a co-worker whom appellant has known for many years. The Finnigans have two children, David, 14

[ 291 Pa. Super. Page 594]

    years old, and Jennifer, 7. Also, Mrs. Finnigan's mother lives with them. Peter shares a room with David, while the father sleeps on the couch. Peter attends nursery school. Otherwise Mrs. Finnigan cares for him until the father comes home, between 4:30 and 5:30 in the afternoon. The father pays the Finnigans $80 a week and contributes "extras" such as baby-sitting services.

The mother, meanwhile, remains in the family home with her children. John M. is also living there. He is divorced, and he and the mother plan to marry as soon as the father's divorce becomes final.

It is fundamental to child custody cases that when the dispute is between the parents, there is no burden of proof; or, to put it differently, the parents share the burden equally. The question before the court is, "What is in the child's best interests?" The court must answer this question after examining all of the evidence, and without resort to the device, appropriate in many other sorts of cases, of imposing on one party or the other any burden of proof. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Jon M.W. v. Brenda K, 279 Pa. Super. 50, 420 A.2d 738 (1980). In Re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). Here, we have concluded, the lower court did not thus treat the parties equally. Instead, as we believe her opinion, when read in light of the record, shows the hearing judge favored the mother. This is best and most pertinently shown by the judge's handling of the evidence regarding the mother's affair with Paul -- although there are other illustrations too, some of which we shall discuss.

With respect to the father, the lower court said:

We found father to be honest and found that he is very much concerned about his son, Peter, but full of hurt and anger over his wife's conduct which he regards as unforgiveable. He certainly has every reason to be hurt and angry but we cannot understand why he made no effort to supervise and guide his nephew whom he knew was sent into his care because of his misconduct in California.

[ 291 Pa. Super. Page 595]

From all the evidence presented he assumed no responsibility ...


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