No. 334 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Clearfield County at No. 80-3098-CD.
Timothy E. Durant, Clearfield, for appellant.
John R. Carfley, Philipsburg, for appellee.
Popovich, Montgomery and Van der Voort, JJ.
[ 314 Pa. Super. Page 470]
Appellant, the natural mother of four children, is appealing an order of the trial court which dismissed her "PETITION FOR CUSTODY". We must reverse and remand the matter for the reasons herein stated.
The following facts are undisputed:
Appellant and appellee, the natural father, were married in 1969 and are the parents of four children: Paul Monoskey, Jr., now thirteen years of age; Joseph Monoskey, eleven years of age; Wendy Monoskey, nine years of age; and Robbie Monoskey, eight years of age. On September 22, 1977, the parties were divorced and agreed in writing, each with advice of counsel, that appellee would have custody of their four children. Visitations were arranged between the parties until the mother decided to retain the children after one of the visits.
On December 3, 1980, appellant, Linda Lee Supko, who has since remarried, filed the instant custody petition. After a hearing, the trial court awarded custody to appellee, Paul Robert Monoskey, Sr. This appeal followed.
In this appeal, appellant raises the following issues: (1) whether the trial court's findings, discussion, and opinion failed to provide a sufficient basis upon which to base a determination of custody; (2) whether the trial court failed to consider adequately all relevant facts in reaching its determination contrary to the best interests of the children; (3) whether the trial court erred in failing to consider the preferences of the two older children; and (4) whether the trial court placed undue emphasis on the fact that appellant retained the children after a period of visitation to the detriment of due consideration of other factors.
After the hearing, the trial court entered the following formal findings of fact:
"1. [Appellant]-mother left the domicile of the parties on June 5, 1977, and immediately proceeded to cohabit with Paul [Supko].
[ 314 Pa. Super. Page 4712]
. Except for visitations with the mother, agreed to by the parties, the children continued to live with [appellee]-father until retained by the mother on one of the visits, at the direction of her present attorney, and in disregard of the order of limited visitation entered by Honorable John K. Reilly, Jr. of this court.
3. The only attacks upon the fitness of [appellee] were allegations of (a) a drinking problem that [appellee] once had until some six months before the mother left the domicile; and (b) that [appellee] had not provided proper medical care for the children.
4. [Appellee] has not used intoxicants since December, 1976; and there was proper medical care of the children at all times.
5. Divorce proceedings were instituted on June 24, 1977; the mother being represented by her present attorney, Timothy Durant, Esq., and the father by Ira Smades, Esq.
6. In the course of negotiations, attorney Smades prepared and submitted a custody and property settlement agreement which was accepted by the parties and duly executed.
7. No dispute has arisen as to the division and transfer of property.
8. The agreement provided, inter alia, that 'under the circumstances existing at the present time' the husband shall be entitled to custody of all the children, but that the wife shall enjoy liberal rights of visitation as shall be agreed upon by the parties.
9. The father also assumed full and sole duty to support their children.
10. The agreement further provided that in the event the parties should be unable to agree as to visitation, either 'may apply to the appropriate Court having jurisdiction for such order or ...