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KATHRYN WITMAYER v. FRANCIS P. WITMAYER (06/01/83)

submitted: June 1, 1983.

KATHRYN WITMAYER
v.
FRANCIS P. WITMAYER, APPELLANT



NO. 2891 PHILADELPHIA, 1982, Appeal from the Order of September 23, 1982 in the Court of Common Pleas of Luzerne County, Civil Division, at No. 655-C-1982.

COUNSEL

W.J. Krencewicz, Shenandoah, for appellant.

Anthony J. Miernicki, Shenandoah, for appellee.

Rowley, Wieand and Beck, JJ. Rowley and Wieand, JJ., concurred in the result.

Author: Beck

[ 320 Pa. Super. Page 375]

This is an appeal from an order awarding custody of a five-year-old boy, Francis David Witmayer (Frank), to his mother, appellee Kathryn Bernadette Witmayer (Kathryn).

[ 320 Pa. Super. Page 376]

After conducting an independent review of the record, we affirm the trial court.

In addition to Frank, Kathryn is the mother of Josette, a child of her first marriage who was twelve-years-old at the time of the hearing. In 1972 Kathryn married appellant Francis P. Witmayer (Francis), who adopted Josette. In 1977 Frank was born. Francis and Kathryn separated in November 1977, and were divorced in 1978. By informal agreement of the parties, the two children resided with Kathryn.

On February 5, 1982, Frank and Josette visited Francis for a weekend. At the end of the weekend, he returned Josette, but not Frank. On February 22, 1982, Kathryn instituted this action seeking legal custody of Josette and Frank.

After a pre-trial conference before a master on May 7, 1982, the parties agreed to an interim order. Frank would remain with Francis, subject to visitation rights for Kathryn. Josette would remain with Kathryn, subject to visitation rights for Francis. This arrangement would continue until a full hearing on the merits and a decision by the trial court.

The custody hearing was held on September 23, 1982. Francis informed the trial court that he would contest only the custody of Frank. After hearing testimony, the trial court awarded custody of both Josette and Frank to Kathryn.

On October 4, 1982, this Court, upon petition of Francis, stayed the lower court order pending the outcome of this appeal.

Francis makes the following arguments on appeal: 1) that the informal custody agreement made by the parents at the time of separation has no force and effect; 2) that the interests of Frank are best served by awarding custody to him; 3) that Kathryn is not a fit person ...


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