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WESLEY J. K. (05/21/82)

filed: May 21, 1982.

IN RE WESLEY J. K., A MINOR CHILD. APPEAL OF ROSEMARIE K., APPELLANT


NO. 1223 PHILADELPHIA, 1981, Appeal from the Order Entered April 22, 1981, by the Court of Common Pleas of Cumberland County, Civil Action - Law, at No. 1342 Civil 1981, in Custody-Habeas Corpus.

COUNSEL

Robert C. Saidis, Carlisle, for appellant.

Kevin Hess, Carlisle, for appellee.

Beck, Watkins and Hoffman, JJ. Watkins, J., dissents and would affirm on the opinion of the court below.

Author: Beck

[ 299 Pa. Super. Page 507]

This appeal arises from a Petition for Custody by appellant-mother. A custody order was issued on April 22, 1981 granting custody to appellee-father. Extensive visitation was granted to appellant.*fn1

It is well-settled in custody matters that this court's scope of review is of the broadest dimensions. This court in Dena Lynn V. v. Harvey H. F., 278 Pa. Super. 95, 100, 419 A.2d 1374, 1377 (1980) stated:

Although we are still tied to the facts as found in the court below, as we are to the lower court's determinations about credibility of witnesses and weight given their testimony, Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350, 353 (1953), ". . . (w)e are not bound, on appeal by deductions or inferences made by the lower court; Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 248 A.2d 63 (1968), . . ." Commonwealth ex rel. Cutler v. Cutler, 246 Pa. Super. 82, 88, 369 A.2d 821, 823 (1977). It is also well settled that our sole function in making our review is to assure the "best interest of the child" is served. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). And finally, of particular relevancy in a case which is so steeped in emotion as this, we must inquire only into relevant facts as they

[ 299 Pa. Super. Page 508]

    affect the relationship between parent and child -- not parent and parent or parent and stranger to that intimate relationship. See In re Leskovich, 253 Pa. Super. 349, 385 A.2d 373 (1978).

In the instant case, we are at odds with the inferences made by the trial judge in interpreting the testimony before him.

Rosemarie K. and Michael K. were married in October, 1975; they separated in May, 1980. They agreed at the time of separation that Rosemarie would retain custody of their two year old son, Wesley.

In December, 1980, Rosemarie voluntarily relinquished custody to Michael because she was suffering from exhaustion and was frustrated with her time pressures and her financial situation. She had taken a second job and was working the equivalent of a seven day week.*fn2 Rosemarie testified:

I told him that I was very exhausted working the two jobs. I felt very guilty for Wes having to go to a fulltime sitter in the evening [sic] and a parttime sitter at night. I was not able to spend the amount of time with him that I had wanted to because of the second job, and I thought it was best for Wesley at the time if Mike could take him temporarily until I could sell the house and find an apartment where I didn't have to work two jobs.

(N.T. 11.) Michael similarly testified on cross-examination that Rosemarie relinquished the child because she was exhausted. (N.T. 37.) We draw no negative inference from Rosemarie's action in temporarily turning over the child to Michael. Rather, we construe same as the action of a concerned and loving mother interested in promoting the best interest of her child at that juncture.*fn3

[ 299 Pa. Super. Page 509]

There was testimony that Michael and his girlfriend were hesitant to take Wesley when Rosemarie asked them to do so. We draw no negative inference from that testimony, either. There was rebuttal testimony that Michael's girlfriend did not wish her daughter to become attached to Wesley and then to see him forever removed from their home. (N.T. 18.) We construe this as the act of a concerned parent, both for her own child and for that of her boyfriend. In any case, Michael and Nancy did take Wesley into their home in December.*fn4

It is also indicated in the record that Rosemarie earns approximately $13,000 per year, while Michael earns approximately $13,500. (N.T. 5, 22.) Since Nancy earns $17,000, their combined income is significantly greater than Rosemarie's income. (N.T. 22.) There is no evidence here, however, that Rosemarie is unable to provide adequately for Wesley, and that is the sole permissible inquiry involving relative wealth in a custody determination. Commonwealth ex rel. Cutler v. Cutler, 246 Pa. Super. 82, 369 A.2d 821 (1977).

The hearing judge stated that he was leaving Wesley with his father because the mother had minimal time to spend with the child. That finding is not supported in the record. At ...


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