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COMMONWEALTH EX REL. GAYNELLE MONTGOMERY v. RAY A. MONTGOMERY (03/12/82)

filed: March 12, 1982.

COMMONWEALTH EX REL. GAYNELLE MONTGOMERY, NOW KNOWN AS GAYNELLE DUDA, APPELLANT,
v.
RAY A. MONTGOMERY



No. 1248 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Washington County, No. 271 Oct. Term, 1978 AD.

COUNSEL

Sanford S. Finder, Washington, for appellant.

Janet Moschetta, Washington, for appellee.

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

Author: Hester

[ 296 Pa. Super. Page 326]

Presently before the court is appellant's appeal from the order*fn1 of the lower court dated November 12, 1980, wherein the lower court granted general custody of the parties' three minor sons to appellee father.

[ 296 Pa. Super. Page 327]

The record herein consists in excess of 500 pages of testimony clearly evidencing a situation which we are asked to resolve in numerous cases; that is, to decide which of two loving, caring parents should be awarded general custody of the parties' minor children.

The lower court convened six separate hearings: October 11, 1979, November 27, 1979, February 13, 1980, March 18, 1980, August 13, 1980*fn2 and September 29, 1980, following which the court issued a 25-page Opinion and Order dated November 12, 1980 granting custody of the three minor children to their natural father, the appellee herein. It is from this Order that the instant appeal has been taken.

We affirm.

It is undisputed that our paramount concern in a child custody proceeding is to determine what is in the best interest and welfare of the child involved considering his or her spiritual, emotional, physical and intellectual well-being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1979); Lewis v. Lewis, 267 Pa. Super. 235, 406 A.2d 781 (1979); Wenger v. Wenger, 267 Pa. Super. 134, 406 A.2d 555 (1979); In re Jennifer Lynn Arnold, 286 Pa. Super. 171, 428 A.2d 627 (1981). In a contest between the child's parents, both mother and father bear the affirmative burden of proving that an award of custody to them would be in the best interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977).

As this court aptly stated in Lewis v. Lewis, supra, at 783-4:

[ 296 Pa. Super. Page 328]

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa. Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court's findings of fact, the appellate court will not be bound by the deductions of the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra, Scarlett v. Scarlett, supra. In conducting this review the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa. Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa. Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra.

Additionally, and assuming that the lower court has fully discharged its responsibilities to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself, and then and only then, file a comprehensive opinion containing its findings of fact and conclusions of law, we thereafter adopt the reasoning of Judge Price contained in Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa. Super. 444, 448, 427 A.2d 1370, 1372 (1981), that:

". . . 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

[ 296 Pa. Super. Page 329]

    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 contained in a written opinion. ...


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