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SUSAN M. BURY v. THEODORE A. BURY (04/15/83)

filed: April 15, 1983.

SUSAN M. BURY
v.
THEODORE A. BURY, JR., APPELLANT



NO. 143 PITTSBURGH, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Washington County, at No. 221 November, 1978.

COUNSEL

Charles Edward Kurowski, Canonsburg, for appellant.

Howard Goldfarb, Washington, for appellee.

Popovich, Montgomery and Van der Voort, JJ. Popovich, J., concurred in the result.

Author: Per Curiam

[ 312 Pa. Super. Page 395]

The parties were married in 1976. One child, Rachael Marie Bury, born May 5, 1977, resulted from the marriage. By a final decree dated February 26, 1979, the parties were divorced. The parties entered into a consent order on November 27, 1979, regarding custody of Rachael. Appellee-mother was given permanent custody. Appellant-father was awarded the right of visitation with Rachael from Sunday morning to Monday morning, to occur every week. The father was also to have the child for two weeks of his vacation and on Christmas day from 12:00 noon until 6:00 P.M.

On November 19, 1981, the father filed a petition to increase and modify the above visitation agreement. Appellant sought: Christmas visitation, to alternate between Christmas eve and Christmas day; visitation on Father's Day, and alternating holidays; split visitation on Rachael's birthday and visitation for four hours, twice during the week depending on his work schedule. After a hearing the court entered an order continuing the custody arrangement established in November 1979, with the following additions. The father was to have visitation rights for three hours, one day during the week. The child was to spend alternate holidays with her parents. Father's Day

[ 312 Pa. Super. Page 396]

    was to be spent with appellant. Appellant here appeals from the above modified visitation order.

In a visitation proceeding, as in one for custody, the singular concern is the interest and welfare of the children involved. See, Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa. Super. 51, 428 A.2d 567 (1981); Rozanski, 206 Pa. Super. [397] at 399-400, 213 A.2d [155] at 156. This standard applies equally to instances where visitation is modified. See, Wick v. Wick, 266 Pa. Super. 104, 403 A.2d 115 (1979). For that reason:

In cases of child custody and visitation our scope of review is broad and requires independent examination of the evidence before reaching our conclusion . . . Nor need we accept a finding which has no competent evidence to support it, "[we must] 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."

Spells [ v. Spells ], 250 Pa. Super. [168], 175-76, 378 A.2d [879], 883 [(1977)] (citations omitted).

In Re Stuck, 291 Pa. Superior Ct. 61, 63, 435 A.2d 219 (1981). See also, Hoffer v. Hoffer, 301 Pa. Superior ...


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