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ROSEMARY T. DUNSMORE v. WALTER B. DUNSMORE (01/28/83)

decided: January 28, 1983.

ROSEMARY T. DUNSMORE, APPELLANT,
v.
WALTER B. DUNSMORE



No. 2926 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil at No. 80 - 15610.

COUNSEL

Lynne Z. Gold-Bikin, Norristown, for appellant.

Thomas E. Waters, Norristown, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 309 Pa. Super. Page 504]

This is a child custody case. The lower court awarded custody of the parties' daughter, now six years old, to the father. The mother has appealed. Because of procedural

[ 309 Pa. Super. Page 505]

    errors, the case will be remanded with instructions to start over again.

The father was permitted to testify without being sworn. In its opinion the lower court explains that this occurred because "[the father] stood on his oath as a member of the Bar in good standing." Slip op. at 9. However, the father's status as an attorney entitled him to no special consideration. The parties must always be treated equally. The mother was sworn; so should the father have been.

Here it was especially important that the father be sworn, for his testimony was in conflict with the mother's. By permitting the father to testify without being sworn, the lower court necessarily gave the impression that in its eyes, the father, as a member of the bar, was a more credible witness than the mother.

The lower court ordered a study by the Montgomery County Children and Youth Services of the parties' residences and their relationship with the child. In its opinion the court states:

Reports [the reports ordered by the court] dated September 14th and September 29, 1981 were submitted and considered before final custody was awarded. Factually, the reports comported with the credible testimony summarized heretofore. Though there was positive interaction between Coreen and both her mother and father, the reports concluded ...


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