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filed: September 10, 1982.


No. 1893 Philadelphia, 1982, Appeal from the Ordered entered June 15, 1982 in the Court of Common Pleas of Lehigh County, Civil Action, Law - No. 80-C-2819.


Sandor Engel, Allentown, for appellant.

John R. Mondschein, Allentown, for participating party.

Spaeth, Cavanaugh and Hoffman, JJ.

Author: Spaeth

[ 304 Pa. Super. Page 84]

On this appeal the mother of two children asks that we reverse an order awarding custody of the children to their father. The children are a 7 1/2 year old girl and a 6 year old boy. They have spent most of their lives with the mother and under her care have done well. In awarding custody of

[ 304 Pa. Super. Page 85]

    them to their father the lower court particularly relied on three factors: that the mother "maintained a close relationship with a married man;" that the mother was involved in two questionable financial transactions; and that since the parties' divorce, "the mother has become increasingly careeroriented [and] has placed heavy reliance on baby-sitters." These factors were not a reason to order a change in custody. The married man is black and the mother and father are white. The lower court regarded this difference in race as a factor that "ought" to be considered. It ought not have been. The evidence does not show either that the mother's relationship with a married man or her need to work has had any adverse effect on the children, or that the financial transactions were in fact questionable. We believe that the best interests of the children will be served by continuing the mother's custody of them. We therefore reverse.

The parties were married on November 24, 1973. It was the mother's first marriage, the father's second. Their daughter, Jessica, was born on March 23, 1975, and their son, Andrew, on August 7, 1976. The parties lived in Bath, near Allentown, Pennsylvania, although the father was required by his employment in the construction industry to be away from home for extended periods. In 1977 the mother returned to work as an operating room technician at a local hospital.

In March 1979 the mother told the father that she wanted a divorce. Shortly afterwards the father went to work in Morocco for nine weeks. Upon his return he was served with a complaint in divorce. He then left for Turkey. While the father was in Turkey, the mother, in September 1979, moved with the children to an apartment in Allentown.

In May 1980 the parties signed a separation and property settlement agreement, providing, among other matters, that the father would have "permanent custody" of the children and the mother, "temporary custody," and that the father would buy the family home in Bath. On July 9, 1980, the parties were divorced. On July 10, 1980, the father and his

[ 304 Pa. Super. Page 86]

    wife-to-be and her two children by her prior marriage moved into the home at Bath. The father obtained custody of the children but only for one week, because the mother refused to return them after a visit with her. The father and mother each filed an action in the lower court seeking custody of the children. These actions eventually resulted in an agreement that the mother would have custody of the children for ten months of the year and the father, custody for two months in the summer. The agreement was entered in the lower court as a stipulated order of December 4, 1980.

The mother has not remarried. In December 1980 she bought a home in Allentown, and she continues to work at the local hospital, where she is now a supervisor of supply processing and distribution. The father remarried in August 1980. About then, his employer sent him to work in Utah, and he has remained there. In February 1981 he changed employers, going to work for a construction company in Salt Lake City, in a managerial position that does not require him to be away from home for extended periods. In June 1981 the father bought a home in Sandy, a suburb of Salt Lake City, where he lives with his wife and her two children.

In March 1981 Andrew went to live with the father in Utah; Jessica remained with the mother in Allentown. This change was with the parties' agreement. In August 1981 the mother asked the father to return both children. Her position was that she and the father had agreed that Andrew should return if he was unhappy living with the father; that he was unhappy; and that under the stipulated order of December 4, 1980, the children were to be returned to the mother after their summer visit with the father. The father returned Jessica but refused to return Andrew. The mother filed a petition in the lower court asking that the father be held in contempt of the order of December 4, 1980. The father filed preliminary objections challenging the court's jurisdiction. On October 5, 1981, the mother flew to Utah with her mother, met Andrew on his way to school, and brought him back to Allentown. On November 23, 1981,

[ 304 Pa. Super. Page 87]

    the father filed a petition in the lower court asking that he be awarded custody of the children, and the mother filed a petition asking that her custody, as provided by the order of December 4, 1980, be confirmed. The lower court held a hearing on March 16 and 17, 1982, and on June 15, 1982, it awarded custody of the children to the father. On July 6, 1982, in response to the mother's appeal, the lower court filed its opinion. On the mother's application we entered a stay of the lower court's order (the lower court had refused a stay). Also, it was apparent that because the children's school year would soon start, the case should be decided as promptly as possible. We therefore ordered that argument would be heard on August 25, 1982, with the record to be transcribed and briefs submitted accordingly.


The children's present situation

As we have mentioned, in December 1980 the mother bought a house in Allentown, and she has continued to work at a local hospital. The home is about a block and a half from the apartment where the mother and children had been living. As a supervisor of supply processing and distribution at the hospital, the mother's salary is $19,500 a year. She also receives $89 a week from the father for the support of the children. Her hours of employment are 8:30 to 5:00; she does not work weekends or holidays, and rarely has to work overtime, and then usually no more than an hour. The usual weekday routine is that the family gets up about seven and after breakfast the mother drives the children to school; sometimes she drops them off at the school bus stop. When Andrew was in kindergarten, he got home about 11:30. By then the baby-sitter was there to meet him and make lunch, after which he would take a nap. Jessica gets home at 3:00, which is when Andrew would get home from first grade. The mother gets home between 5:00 and 5:30, sometimes 5:45.

Incident to the hearing the lower court ordered home study reports. The report regarding the mother's home was prepared by a case worker from the Lutheran Home of Topton. The report states:

[ 304 Pa. Super. Page 88]

Mrs. Temos has lived in her home at the above address since December, 1980. The three bedroom townhouse, for which she pays a $392.92 monthly mortgage, is located in a development near Emmaus. The homes in the neighborhood appear well-kept, as does that of Mrs. Temos. There are many young children in the neighborhood, and Jessica and Andrew (the children in question in this custody case) name a long list of playmates and friends they have in the neighborhood. There is a good-sized fenced-in-yard behind the house, in which the children can play. There also is a park/playground about a block from the house. As per mother's orders, they take turns cleaning up their toys in the yard at the end of each day. The family also has a small dog and a cat, for which the children help to care.

The house is very nicely decorated and was very clean on the interviewer's announced and unannounced visits. The children have their own bedrooms. Mrs. Temos said that she plans to remain at this residence. It is less than ten minutes from her place of employment.

With respect to the mother's personal qualities, the home study report states:

Mrs. Temos impressed this interviewer as being a responsible, motivated, and caring person and mother. She exhibited some very effective and consistent parenting skills with her children. Her children seem to be her number one priority. Mrs. Temos is not involved in any outside activities except for a work-related association that requires one meeting per month. She has shown stability and progression in her job. She appears open and honest and has definitely transferred some good values to her children. She also has remained cooperative and supportive of continuing monthly visits between the children and their paternal grandparents.

The home study report also states that "Jessica and Andrew seemed to be healthy, happy, and well-adjusted children. They were very talkative and sociable and appeared at ease when communicating with their interviewer." This favorable opinion was shared by the children's teachers.

[ 304 Pa. Super. Page 89]

Laureen Lewis, Jessica's first grade teacher, testified that "Jessica is a very avid reader," "really above average." "Her vocabulary is excellent for a first grade student . . . . She even has a very good awareness of punctuation, capitalization, . . . that type of thing . . . . And she has begun to write stories and she expresses herself very well." Mrs. Lewis went on to testify that Jessica "excels as well in math and has had no difficulties . . . . [S]he does have excellent academic skills. She picks up concept[s] very quickly. Emotionally and socially I really don't have any problems with Jessica. She is a very nice little girl." When asked her "overall evaluation" of Jessica, Mrs. Lewis replied: "I would say that -- I would say that she is an excellent student in all ways in the first grade. In comparison with the rest of the class she is one of the top." N.T. 2-48 -- 2-49.

Joan Nyemscek, Andrew's kindergarten teacher, testified that in "reading readiness [Andrew] is doing very well. He has mastered all his alphabetic skills, prereading skills." "As far as math goes," Mrs. Nyemscek said, "he's well aware of his numerals. He counts way beyond 20 which is what is expected at the end of kindergarten." She reviewed her report, on a school form, of Andrew's manipulative skills and social and emotional behavior, summarizing it as "basically a very good report." In her opinion, Andrew "has a very mature sense structure." When asked her "overall evaluation" of Andrew, Mrs. Nydemscek replied: "He is doing very well academically and socially and emotionally. He is also very well rounded." N.T. 2-32 -- 2-33.

A neighbor and the babysitter also testified, in less detail than the children's teachers or than appears in the home study report but to the same effect. The neighbor's two girls and Jessica played together several times a week after school. The neighbor described Jessica as well-behaved and always appropriately dressed. She said that she knew Andrew less well but that "he seems to get along well with the other children." She was not a personal friend of the mother and only knew her "a little bit," but from what she had seen, especially during the summer, the mother and

[ 304 Pa. Super. Page 90]

    children seemed close and affectionate towards one another. The babysitter -- who the neighbor said "seems very nice" -- described the children's and mother's schedules. She said the children were well behaved and that she had "no problem with them." She described their dress, said they were always clean, and told about their play with other children. She said that the mother "pays a lot of attention to them" and that the relationship between the mother and the children was "very loving."


The factors relied upon by the lower court

The lower court entitles its opinion a "memorandum opinion;" the opinion is not divided into findings of fact, discussion, and conclusions of law, but is instead in narrative form with interspersed comments and conclusions. Nevertheless, the basis of the court's order awarding custody of the children to the father is sufficiently clear, and since, as both parties agree, the record is complete, remand for formal findings and conclusions or for further proceedings would only result in unnecessary and therefore undesirable delay. (At oral argument, we may add, counsel for both parties expressed the hope that we would not remand but would make a final decision.)

In its opinion the lower court makes virtually no reference to the testimony, which we have just summarized, of the children's teachers, the neighbor, or the babysitter. The court's only reference to the Lutheran Home's report regarding the mother's home is to say that the report "comments positively about Cathy Temos, her residence, the childrens' [ sic ] progress and development and her suitability for Jessica and Drew." Slip op. at 5. The court's only reference to the teachers' testimony is to say in passing, when discussing another matter, "although the children have done well in school . . . ." Slip op. at 3. This absence of discussion is especially striking. For not only was the testimony extensive and uncontradicted, and most of it by professional, disinterested witnesses, but it was of central importance. The children have for most of their lives been

[ 304 Pa. Super. Page 91]

    under the mother's care. In deciding upon their custody, nothing could be more important than knowing, and considering, how they have done. As we have only recently observed:

If in the past, the primary caretaker has tended to the child's physical needs and has exhibited love, affection, concern, tolerance, discipline and a willingness to sacrifice, the trial judge may predict that those qualities will continue.

Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Superior Ct. 421, 448 A.2d 1113 (1982).

And see Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa. Superior Ct. 63, 434 A.2d 130 (1981) (stability of children's relationship with their father and his care of them and maintenance of the household warrant reversal of lower court's award of custody to mother); Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (lower court should have considered father's uninterrupted care and devotion to daughter, and that the mother's concern was demonstrated by past neglect and empty promises).

Instead of recognizing and giving weight to the beneficial effects on the children of the care and home that the mother has provided, the lower court concentrated its attention on certain aspects of the mother's life that it disapproved of.

After an opening chronological summary of the parties' marital and employment histories, the lower court states:

Cathy Temos admittedly maintains a close relationship with a married man, Wilburt Banks ("Wilburt"), a technologist in a New York hospital, who resides in the Bronx, New York, and is black. They met at a work-related conference. They admittedly spend two-to-three weekends a month together, sharing the same bed, at the mother's Allentown town house and have persistently done so for the last year and a half. Their bedroom is across the hall from the children's bedroom. Although the children have done well in school, their absences are suspiciously more frequent when Wilburt visits. On several occasions, the children, their mother and Wilburt

[ 304 Pa. Super. Page 92]

    visited and slept in Wilburt's one-bedroom New York apartment. Wilburt has recently experienced financial difficulties. Cathy Temos has supported Wilburt's efforts to skirt the bankruptcy court by allowing his car to be titled in her name in Pennsylvania. Moreover, there is evidence that she also supports her babysitter's efforts to skirt the welfare authorities by paying her cash while the sitter receives a grant for her own children. While it appears that the children consider their relationship with Wilburt in a favorable light, it can be said rather assuredly and we have so concluded that the manner in which she and her male friend have pursued their relationship will hardly add to the positive development of the children. While not by itself determinative of the outcome of this case, this non-marital relationship is a factor properly considered in arriving at our decision. Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super.Ct. 484, 422 A.2d 572 (1980). Although Wilburt testified that two weeks before the hearings began in this case he filed a divorce action, and stated that when he is financially able to do so he will pursue a divorce, uncertainties exist as to whether he and Cathy Temos will eventually wed each other. He observed that it will be difficult to do so but that he is willing to relocate here and seek a position in the business world. Wilburt has two teenage daughters from his marriage; they both reside with their mother.

Slip. op. at 3-4.

After this statement the court refers, among other matters, to the parties' separation and property settlement agreement and to the mother's having brought Andrew back from Utah. The court then states:

While faced with no other choice when their marriage ended, the mother has become increasingly career-oriented. She has placed heavy reliance on baby-sitters.

Slip op. at 5.

The court then refers to the home studies, summarizing each very briefly as favorable (we have quoted the court's summary of the study of the mother's home; its summary of the

[ 304 Pa. Super. Page 93]

    study of the father's home is very similar). The court then refers to its interview with the children.

In concluding its opinion the court states:

Clearly both parents love Jessica and Drew and have deep concern for their future welfare.

We concluded, however, that it is the father who can provide the most favorable setting for the physical, intellectual, moral and spiritual well-being of these children and the constancy of love, direction and discipline. He enjoys a stable, loving marriage with a wife who is willing and able to share their home with the children.

Slip op. at 6.

The court adds that it is

     not unmindful that changing their residence from Pennsylvania to Utah may cause Jessica and Drew some temporary discomfort . . . [but] once they are settled they will have the opportunity to grow up in a normal, stable and secure environment.

Slip op. at 7.


What order will serve the children's best interests?

Sometimes decision in a child custody case, as in any case, will turn upon the credibility of the parties and their witnesses, going one way or the other depending upon which side is believed. In such a case we will not disturb the lower court's findings, for we recognize, gladly, and yield to, the lower court's superior ability to appraise credibility, it having seen and heard the witnesses. Commonwealth ex rel. Berman v. Berman, 289 Pa. Superior Ct. 91, 432 A.2d 1066 (1981); In re: Custody of Hernandez, 249 Pa. Superior Ct. 274, 376 A.2d 648 (1977). This case, however, is not such a case. The lower court made no findings on credibility, nor did it need to. There were, to be sure, some ...

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