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COMMONWEALTH PENNSYLVANIA v. L. D. B. APPEAL T. P. B. (01/22/82)

filed: January 22, 1982.

COMMONWEALTH OF PENNSYLVANIA, EX REL., M.B., J.B., AND S.B.
v.
L. D. B. APPEAL OF T. P. B.



COUNSEL

David F. Pollock, Waynesburg, for appellant.

Steven R. Wolf, Canonsburg, for appellee.

Spaeth, Hester and Johnson, JJ.

Author: Spaeth

[ 295 Pa. Super. Page 2]

This is an appeal by a father from an order awarding custody of his four children to their mother. During the second of the two hearings the father offered the testimony

[ 295 Pa. Super. Page 3]

    of the family minister. On objection by counsel for the mother, the lower court held that under the new Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. ยง 101 et seq., the minister was precluded from testifying. The father argues that this was error.*fn1 We agree and remand for further proceedings.

The parties' four children are Michelle, born January 2, 1970; Jodi, born March 31, 1972; Stacy, born April 15, 1973; and Joel, born April 5, 1980. The first hearing was held on April 18, 1980. After the hearing, the lower court awarded custody of the children as follows:

Order

AND NOW, this 19th day of April 1980, the Court, believing the children's interest be better served, orders and directs now that the custody of Michelle, Jodi, and Stacy be immediately placed with their father, this custody placement to continue until the end of the school year, that custody under the supervision of Children and Youth Services and during that time, that agency to obtain and present to the Court of the home conditions in the home of Linda Demurray Bruno [the mother] and the home conditions in the home of Tom Bruno [the father] and it being the interest of the Court that as of the effective date, the closing of the school year, if the home conditions are satisfactory, that the children will be placed in the permanent custody of the mother.

Record at 17.

The order also provided for visitation by the mother and directed the father to pay support.

[ 295 Pa. Super. Page 4]

As instructed by this order, caseworkers from Children and Youth Services visited the mother's home and the father's home, and reported to the lower court. On July 22, 1980, a second hearing was held. On November 14, 1980, the lower court issued an adjudication containing findings of fact and conclusions of law, and the following order:

Order

AND NOW, this 14th day of Nov., 1980, the Court orders that the custody of the children shall be placed with the mother, under the supervision of the Children and Youth Services of this County, and the custody transfer shall be effected during the second week of the Christmas holidays. The father shall thereafter have the right of in-custody visitation on the second and fourth weekends of each month, between the hours of six o'clock P.M. on Friday until six o'clock P.M. on Sunday, and also for one-half of the Easter vacation, each of the children's birthdays, and for two months in the summer, those two months being separated by a return of their custody to the mother for a week in between.

Counsel for the father filed exceptions to this adjudication. In response, on January 30, 1981, the court issued an opinion in which it corrected some of its findings of fact. The court declined, however, to change its conclusions of law, and in the order accompanying its opinion the court dismissed the exceptions to the conclusions of law and affirmed its award of custody to the mother.

Most of the testimony at the first hearing concerned alleged extramarital affairs of the mother. N.T. 4/18/80, 18-22, 27-33, 38-50, 62, 66-68, 72, 80, 95-99, 101-3, 112-13, 115, 120-123, 126, 127. We assume that this testimony was one reason for the lower court's order of April 19, 1980, placing the three oldest children -- the youngest was only two weeks old -- with the father until the end of the school year.

The mother denied most of the testimony regarding her alleged extramarital affairs. Nevertheless, in its adjudication,

[ 295 Pa. Super. Page 5]

    issued after the second hearing, the lower court found that "[d]uring the course of the marriage the mother has had several extramarital affairs, and for several months before her separation, had been frequently identified with another man, and that relationship continued during and after her separation from the marital domicile." Finding of Fact No. 3. The court also found, however, that since the first hearing, the mother had "obtained better residence facilities," Finding of Fact No. 5, and that she had been "making a diligent effort to arrange for a home" for the children, Adjudication at 4. While finding that both parents loved and were capable of caring for the children, Finding of Fact No. 8, the court stated that

     from a careful consideration of all of the ingredients involved, . . . [the mother] now is and will be better able to provide for their needs. She can give them full time care; has a closer bond with of [sic] confidence and understanding with them; can make the children feel more comfortable in her care; and is able to give them guidance and direction without the need for sitters and the father's harshness. It is the moral climate which we find to be most objectionable, and that especially as it relates to her continuing interest in a paramour, which at times, has preempted more of her interests and has dictated more of her decisions than has the children's welfare, and is therefore a matter which must still be better resolved.

Adjudication at 4-5.

The court concluded that "[t]he children's best interest is served by the placement of permanent custody in the mother, after the mid-year school brea[k], with ample visitation ...


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