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ROBERT H. H. v. MAY L. H. (12/29/81)

filed: December 29, 1981.

ROBERT H. H.
v.
MAY L. H., APPELLANT



No. 19 Harrisburg, 1981, Appeal from the Order dated November 21, 1980 of the Court of Common Pleas of Dauphin County, Civil Division, at No. 3124-1980

COUNSEL

John J. Krafsig, Jr., Harrisburg, for appellant.

Harry B. Goldberg, Harrisburg, for appellee.

Brosky, McEwen and Beck, JJ.

Author: Brosky

[ 293 Pa. Super. Page 433]

This is an appeal from an award of custody to the father of two children, Kimberly D. H., his adopted child, and Jessica L. H., a natural child of the parties. We have before us an extensive record in which is disclosed a hotly contested dispute regarding the custody of their children. Kimberly D. H. was 11 years old and Jessica L. H. was 8 years old at the time of the custody hearing. The parties were married on September 29, 1972. The opinion which supports the order of the trial court is only three pages long. There is a noticeable absence of any analysis of the facts disclosed in the record regarding the relationship of the custodial parent, at the time of the hearing, May L. H., to her children. Rather, there is only a brief and condemning discussion of her romantic relationships, occurring at different times in the course of the parties' separation, with three men. The record clearly indicates that the children are predisposed to living with their mother and that they have a strong bond with their mother. For the reasons that follow, we reverse the decision of the trial court and remand to the trial court with the direction that custody of the children be awarded to the appellant, May L. H.

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the "best interest of the children." In re Custody of White, 270 Pa. Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth's justifiable concern for the health and safety of its children is

[ 293 Pa. Super. Page 434]

    met. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1979). Our review, therefore, requires not only a thoroughly developed and complete record, Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974), but a comprehensive and well-reasoned opinion which analyzes the facts disclosed in the record in a manner which clearly demonstrates the necessity for placing custody with either the petitioner or respondent. Martincheck v. Martincheck, 262 Pa. Super. 346, 396 A.2d 788 (1979). Hence, we shall engage in a broad and comprehensive review of the record and reach an independent decision regarding the placement of the children in the custody of either party. We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, 286 Pa. Super. 171, 176, 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa. Super. 444, 458, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion).*fn1

[ 293 Pa. Super. Page 435]

It is axiomatic that the pole star of a custody dispute between the mother and father is what is in the best interest of the children involved. Dena Lynn F. v. Harvey H. F., 278 Pa. Super. 95, 419 A.2d 1374 (1980); Wenger v. Wenger, 267 Pa. Super. 134, 406 A.2d 555 (1979). This interest encompasses their spiritual, emotional, physical and intellectual well being, In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, supra, 286 Pa. Super. at 174, 428 A.2d at 628.

May L. H. and Robert H. H. separated in February of 1980 and were divorced on May 20, 1980. May L. H. moved from the family house. The children, after the separation, lived with their mother. Shortly after May L. H. moved from the family residence to a new dwelling, she established a sexual relationship with a man who lived with her and her children for several months. Some time later, she had a sexual encounter with a second man and yet later she moved from her dwelling to live with another man with whom she and her children resided through the time when the custody hearing was held.

Robert H. H. filed a petition for visitation (partial custody in fact) and a hearing on that ...


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