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WILLIAM JOSEPH SMITH v. SHERRY ANN SMITH (12/10/82)

filed: December 10, 1982.

WILLIAM JOSEPH SMITH, APPELLANT
v.
SHERRY ANN SMITH



No. 318 Harrisburg, 1981, Appeal from the Order of October 14, 1981, in the Court of Common Pleas of Franklin County, Civil Action, at No. F.R. 1980-656.

COUNSEL

Philip Samuel Cosentino, Chambersburg, for appellant.

John F. Nelson, III, Chambersburg, submitted a brief on behalf of appellee.

Cavanaugh, Beck and Montemuro, JJ. Cavanaugh and Montemuro, JJ., concur in the result.

Author: Beck

[ 307 Pa. Super. Page 545]

Appellant-father, William Joseph Smith, and appellee-mother, Sherry Ann Smith, were married on June 13, 1977 and their daughter, Jesse Michelle Smith, was born on March 9, 1979. This is an appeal from an October 14, 1981 order granting appellee primary custody of Jesse.

[ 307 Pa. Super. Page 546]

The procedural history leading up to that order was as follows. On August 21, 1980, appellant filed a Petition to Confirm Custody to which appellee filed an Answer on September 5, 1980. On September 18, 1980, the parties met with Richard Mason, the Franklin County Child Mediation Officer, and on October 7, 1980, Mason filed a report recommending the imposition of a shared custody arrangement. On October 10, 1980, in response to Judge John W. Keller's request, Mason suggested a plan for implementation of a viable shared custody arrangement. On April 13, 1981 there was a stipulation by the parties arranging for shared custody; that stipulation was reduced to a court order*fn1 imposing shared custody which read as follows:

1. Respondent [appellee] shall have custody of Jesse Michelle Smith each Monday from 8:00 a.m. until Wednesday at 11:30 a.m.; each Wednesday from 7:30 p.m. until Thursday at 3:00 p.m.; each Friday from 8:00 a.m. until 3:00 p.m.

2. The Petitioner [appellant] shall have custody of Jesse Michelle Smith each Wednesday from 11:30 a.m. until 7:30 p.m.; each Thursday from 3:00 p.m. until Friday at 8:00 a.m.; and each Friday from 3:00 p.m. until Monday at 8:00 a.m.

3. Each party shall have uninterrupted custody during his/her vacation provided that he/she has given the other

[ 307 Pa. Super. Page 547]

    party at least two weeks advance notice as to the time of said vacation.

4. Each party shall be entitled to additional custody at such times as can be mutually agreed upon.

On July 2, 1981, appellant, seeking primary custody, filed a Petition to Modify the Custody Order, and on August 14, 1981, appellee filed her Answer. A September 11, 1981 hearing followed after which Judge George E. Hoffer entered an order granting appellee primary custody.

Our Court enunciated clearly in Robert H.H. v. May L.H., 293 Pa. Super. 431, 433-434, 439 A.2d 187, 188-189, as amended, (Feb. 26, 1982) (footnote omitted) our broad scope or review in child custody matters:

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the "best interest of the children." In re Custody of White, 270 Pa. Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth's justifiable concern for the health and safety of its children is met. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1977) . . . . We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in

[ 307 Pa. Super. Page 548]

    custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, 286 Pa. Super. 171, 176, 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa. Super. 444, 458, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion).

The lower court judge modified the shared custody arrangement and ordered sole custody to appellee because he found a substantial change of circumstances warranting the modification:*fn2

The first question we must address is whether the circumstances have sufficiently altered to permit the prior decree to be modified. The prior decree granted joint custody*fn3 with possession of the child alternating nearly daily between the parties. The father established at the hearing that he has enrolled in Kutztown State College and shortly will be moving to the Allentown area, a distance of approximately 120 miles from Chambersburg. Clearly, in light of the parties' work and school schedules and the distance between the parties' homes, joint custody under the prior April 13, 1981, decree is not feasible.

Lower court opinion at 7-8.

We disagree with that finding and conclude that a shared custody arrangement is in Jesse's ...


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