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CUSTODY J. S. S. APPEAL A. S. SANDRA J. S. v. ALVERTA S. (04/23/82)

filed: April 23, 1982.

IN RE CUSTODY OF J. S. S. APPEAL OF A. S. SANDRA J. S.
v.
ALVERTA S.



No. 1794 Philadelphia, 1981, No. 1795 Philadelphia, 1981, Appeal from the Order dated June 18, 1981, Court of Common Pleas, Lehigh County, Civil Action, Law, at Nos. 80-C-1955, 80-C-2027.

COUNSEL

Charles James Fonzone, Allentown, for appellant.

John J. Keller, Allentown, did not file a brief on behalf of Sandra S., participating party at No. 1794 and for appellee at No. 1795.

Johnson, Watkins and Lipez, JJ.

Author: Johnson

[ 298 Pa. Super. Page 429]

This is an appeal from an order of the Court of Common Pleas awarding custody of Jeremy S. to Sandra S. who is his grandmother.*fn1 The appellant, Alverta S., is the great-grandmother

[ 298 Pa. Super. Page 430]

    of the child. The child's mother was killed in a car crash in May 1980 when the child was less than one year old.

The facts of this case are as follows. The child's mother, Debra, conceived the child in 1978 when she was sixteen years old, still in high school and living with her mother, Sandra. There was testimony that Sandra urged Debra to abort the pregnancy. Debra did not wish to do so, and moved to her grandmother Alverta's house where she lived until her accidental death in 1980. Her baby, Jeremy, the child whose custody is at issue in this case, has therefore lived with Alverta, his great-grandmother, since his birth in May 1979.

At the time of the hearing in October 1980, Sandra was 36 years old. She was living with her 17 year old son and 49 year old paramour in a second floor apartment. She is the eldest daughter of Alverta. She has worked in house-keeping at nursing homes since leaving her mother's home. Her two children, Debra and Willard, were born of a liaison with a married man, since deceased. She has lived with her paramour, Roger, for four and one half years, and been involved with him for about nine years.

Of Roger we know only that he has not been employed for about eight years. There was conflicting testimony as to his views about child-rearing and as to his relationship with Sandra's son, Willard. Of Willard all we know is that he is in eleventh grade and plays football.

Alverta is 55 years old. She owns a large house with a large yard. She was raised by maternal grandparents, married at 18 and gave birth to nine children before her husband died. She has never worked outside the home. Currently the adults in her household give her their paychecks, with which she manages the household. The household consists of about a dozen people of different generations and includes two of Alverta's daughters, a daughter-in-law, and their respective children of grade school age. The only men

[ 298 Pa. Super. Page 431]

    are Harold Whelan, the 38 year old son of Alverta's former paramour, and a nephew of Harold who is 22. Harold appears himself to have had a sexual relationship with Alverta in the past. Harold works as a garage mechanic and also helps to maintain the house of which he is a part owner together with Alverta and two of her daughters. Harold testified, as did other members or former members of the household, that Jeremy is loved and well taken care of in Alverta's household.*fn2

The judge awarded custody to Sandra essentially (1) because he was "concerned with the large number of people residing with Alverta", (2) because he was "concerned with exposing the child to the open sexuality of the Alverta S. household" and (3) because of the lack of "any type of steady relationship among men and women" in Alverta's household as compared to Sandra's. See slip op. at 5-6, Nos. 80-C-1955 & 80-C-2027 (C.P. Lehigh County, June 18, 1981).

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa. Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979), and cases cited therein. So as to facilitate this broad review, we consistently emphasize that the hearing court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and

[ 298 Pa. Super. Page 432]

    specific reasons for the court's ultimate decision. Garrity v. Garrity, supra; Guelich v. Guelich, 282 Pa. Super. 621, 425 A.2d 848 (1980). When the hearing judge fully complies with these requirements, his decision is not reversed unless he has abused his discretion. Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961); Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa. Super. 444, 427 A.2d 1370 (1981).*fn3

In custody cases the best interests of the child are the most important consideration. All other considerations are deemed subordinate to the child's physical, intellectual, emotional, moral and spiritual well-being. See Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380, 383 (1972); In re Snellgrose, 432 Pa. 158, 163, 165, 247 A.2d 596, 599, 601 (1968); Jon M. W. v. Brenda K., 279 Pa. Super. 50, 54, 420 A.2d 738, 740 (1980); Commonwealth ex rel. Williams v. Williams, 229 Pa. Super. 327, 330, 324 A.2d 540, 542 (1974); Commonwealth v. Kraus, 185 Pa. Super. 167, 170, 138 A.2d 225, 227 (1958). To affirm the order of the lower court, therefore, we must be persuaded that its decision comports with the best interests of the child. Additionally, each party has the burden of proving that the best interests of the child will be served by the placement of the child with her. Beichner v. Beichner, 294 Pa. Super. 36, 439 A.2d 737 (1982).

For the reasons given below, we find that Sandra did not meet this burden, that the record is inadequate, that the lower court's opinion did not sufficiently consider and analyze all the testimony, and that the lower court drew conclusions that are either not based on, or are controverted by, the testimony.

These defects are all intertwined. We shall therefore discuss them in terms firstly of the insufficient information in the record, which bears on the judge's having reached

[ 298 Pa. Super. Page 433]

    conclusions which had no facts to support them, and secondly in terms of what is in the record which the judge did not treat in his opinion or ...


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