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DONALD C. BROOKS v. CLELIA BROOKS (05/31/83)

submitted: May 31, 1983.

DONALD C. BROOKS
v.
CLELIA BROOKS, APPELLANT



No. 2171 Philadelphia, 1981, APPEAL FROM THE ORDER OF JULY 22, 1981 IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, CIVIL NO. 81-625.

COUNSEL

Daniel J. DiGiacomo, Philadelphia, for appellant.

Albert Momjian, Philadelphia, for appellee.

Rowley, Wieand and Cirillo, JJ. Rowley, J., files a concurring statement in which Wieand, J., joins.

Author: Cirillo

[ 319 Pa. Super. Page 272]

This is an appeal from an order of the Court of Common Pleas of Montgomery County dated July 22, 1981, awarding custody of the parties' two minor children, Donald Jr. and Stephanie Kara, to their father, appellee Donald C. Brooks, and awarding partial custody during certain holiday and vacation periods to their mother, appellant Clelia Brooks.

Donald and Clelia were married in Florida in 1968 and resided there until 1980. Donald Jr. was born on January 20, 1969, and Stephanie Kara was born on June 12, 1972. Mr. Brooks was employed as a maitre'd at the Diplomat Hotel in Hollywood, Florida. Mr. Brooks subsequently left his job at the Diplomat to become a manager at a Holiday Inn. Mr. Brooks also worked as a carpenter for a time and returned to the employ of the Diplomat Hotel. In January 1980 Mr. Brooks accepted a position as catering director at the Fairmount Hotel in Philadelphia. The salary of $78,000 offered by the Fairmount was almost triple Mr. Brooks' salary at the Diplomat. Mr. Brooks discussed the move to Philadelphia with his wife, and the couple came to Philadelphia on two occasions to search for an appropriate residence. They found a suitably large house in Elkins Park. However, the parties decided that it would be best that the children finish the school year in Florida. Donald, therefore, moved to Philadelphia alone and began work at the Fairmount in early January, 1980. It was planned that at the end of the school year Clelia and the children would join Donald in Philadelphia.

[ 319 Pa. Super. Page 273]

During the five months between January and June, 1980, Mr. Brooks kept in contact with his family through frequent telephone calls and he traveled to Florida in May to attend Stephanie Kara's first Holy Communion. At the end of the school term in early June, Mr. Brooks attempted to telephone his family on numerous occasions, but the line was constantly busy. Unable to reach his family by telephone, Mr. Brooks took the next available flight to Florida. Mr. Brooks arrived at the family home in Florida at 1:30 a.m. and found the children, then ages 8 and 11, at home alone. Mr. Brooks took the children to his hotel and when he later spoke to Mrs. Brooks, she informed him that she was seeing another man and that she did not want to move to Philadelphia. Mr. Brooks brought the children back to Philadelphia with him. Mr. Brooks kept in contact with his wife by telephone during the next two months.

During the summer of 1980, Mr. Brooks and the children resided in a suite at the Fairmount Hotel. The children attended a day camp at Friends Central School. When Mr. Brooks was working, the children were cared for by a babysitter, Miss Cheryl DiPrimio, the daughter of Mr. Brooks' secretary.

In mid-August, 1980 Mrs. Brooks came to Philadelphia and the family moved into the house in Elkins Park. However, on September 23, 1980, without notice, Mrs. Brooks left the house abruptly and returned to Florida. In Florida, she lived with the man with whom she had the affair. Mrs. Brooks later called her husband and informed him that she intended to stay in Florida. Mr. Brooks then hired Miss DiPrimio as a full time live-in housekeeper and babysitter. Miss DiPrimio was paid $100 a week and provided with room and board. In October, 1980, Mrs. Brooks had herself admitted to a Florida hospital for psychiatric care. Mrs. Brooks stayed in the hospital for approximately three weeks.

Mr. Brooks remained in telephone contact with his wife during the fall of 1980, but Mrs. Brooks did not see him or the children during that time. However, in early February,

[ 319 Pa. Super. Page 2741981]

, Mrs. Brooks arrived unannounced at the Elkins Park home. Mr. and Mrs. Brooks had dinner on the evening of her arrival and she expressed a desire to reconcile. However, Mr. Brooks felt it was then too late for a reconciliation. The next day, after Mrs. Brooks verbally abused Miss DiPrimio in front of the children, Mr. Brooks took her to the airport and sent her back to Florida. Mrs. Brooks returned to the Elkins Park home the next day, accompanied by her parents. They demanded to be admitted, but Miss DiPrimio, who was at home alone with the children, refused to open the door and called the police. On February 6, 1981, a hearing was held before the Honorable Mason Avrigian and temporary custody of the children was awarded to Mr. Brooks. On July 22, 1981, after a hearing, the Honorable Lawrence A. Brown awarded custody to Mr. Brooks and partial custody to Mrs. Brooks. Mrs. Brooks was awarded custody of the children for a portion of each Christmas and Easter holiday period and for six weeks each summer. Mrs. Brooks' partial custody was ordered to take place at the home of Mrs. Brooks' parents in Florida. Mrs. Brooks filed the instant appeal.

At the outset, we note that the primary consideration in a custody dispute between parents is the best interest of the child, including the child's physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). On appeal, our scope of review in custody cases is of the broadest type.*fn1 Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Newcomer v. King, supra. That is not to say that we can nullify or usurp the fact-finding function of the trial judge. Commonwealth ex rel. Michael R. v. Robert R.R., 314 Pa. Super. 335, 460 A.2d 1167 (1983); Commonwealth ex rel. Newcomer v. King, supra. We must defer to the trial

[ 319 Pa. Super. Page 275]

    court's findings of fact and reverse only where in making the finding the trial court has abused its discretion. Commonwealth ex rel. Newcomer v. King, supra. However, we are not bound by the deductions and inferences made by the trial judge from the facts he has found. Commonwealth ex rel. Michael R. v. Robert R.R., supra. We must exercise independent judgment based on the evidence and make such an order on the merits of the case as ...


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