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NANCY E.M. v. KENNETH D.M. (07/15/83)

filed: July 15, 1983.


No. 781 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Erie County, No. 3960-A-1979.


Dennis V. Williams, Erie, for appellant.

Donald W. Grieshober, Erie, for appellee.

Cavanaugh, Brosky and Montgomery, JJ. Brosky, J., files a dissenting opinion.

Author: Per Curiam

[ 316 Pa. Super. Page 353]

This is an appeal from an order awarding custody of the parties' minor sons, David and Kevin, to their father, Kenneth. The same order provides for continuing custody of the minor daughter Lisa with the mother, Nancy. Lisa's custody is not the subject of this appeal. Visitation by Nancy with David is to be at David's desire and visitation with Kevin is set at two six-hour visits per week "or more often if desired by the child." David will be eighteen years old on August 19, 1983 and Kevin will be ten on September 19, 1983.

On appeal, Nancy asserts: (1) that the evidence is insufficient to justify an award of custody to Kenneth; (2) that it was error to limit her visitation with David to only those times when David desires; and (3) that the visitation with Kevin as set forth in the order is so restrictive as to be a virtual denial of visitation for which there is no justification. We affirm in part and reverse and remand in part.

[ 316 Pa. Super. Page 354]

The parties were married in 1972 and divorced in January 1980.*fn1 Their separation and subsequent divorce was marked by allegations of physical and verbal abuse from both parties and stormy arguments sometimes witnessed by the children.*fn2 Their relationship continues to be extremely strained and it is apparent even from the cold record that they are unable to behave civilly to one another, regardless of the effect this may have on their children. Unfortunately, the children have been affected. At approximately the same time as the divorce was granted, and at a time when both parties and all three children were still residing in the marital home, David left home and stayed at his grandparents', where he remained for about a month. After the parties had established separate residences, David went to live with his father where he remains. He has had little contact with his mother and does not wish to have any visitation with her. Kevin and Lisa have resided with Nancy, spending weekends with Kenneth.

This action was initiated on August 30, 1979, and the first hearing was held in June of 1980. The Honorable Lindley R. McClelland entered an order of custody which was appealed to this court. The matter was remanded for further evidentiary hearings which were held in June of 1982 before the Honorable Richard L. Nygaard. It is Judge Nygaard's order which is the subject of the instant appeal.*fn3 In all, four experts testified at the different hearings, although only two experts testified at the most recent hearing. In

[ 316 Pa. Super. Page 355]

    addition, the court heard from both parties, their family and friends, and interviewed each of the children twice. Most of the evidence presented by Nancy consisted of a recital of the reasons that led to the divorce and accusations that Kenneth was turning the children against her. There was also testimony that Nancy has moved several times in the two years since the divorce and that on occasion the children have been left alone due to either her work or her social activities. In addition, the youngest child had witnessed Nancy and a male friend in a romantic encounter which disturbed and confused him. All of the children are bright and articulate children, who do reasonably well in school, although David has had some serious behavioral problems. At the most recent hearing, the record shows that these problems have been somewhat alleviated and he is getting along better in school. David was adamant in his desire to remain with his father. His lack of contact with his mother stems from disparaging remarks she continues to make about his father and about his desire to live with his father. He testified that he loves his mother but does not want to visit with her until she stops harassing him. Kevin also expressed a strong desire to live with his father, although he would like to continue to see his mother. The expert testimony presented at the June hearing strongly supports the boys' desire, for a variety of reasons, including the fact that the boys view their father as a more stable person and the household as a more secure one. Kevin also was viewed by the experts as unable to express his feelings about his father to his mother for fear that it would upset her, although Nancy did testify that, when he returned from one psychological evaluation, he tearfully told her that he had told the psychiatrist he wanted to live with his father. There was more than sufficient evidence presented to warrant the trial judge in finding that Kenneth is fulfilling his parental role insofar as the children's schooling, religious training and everyday care is concerned.

It is well-settled that the sole issue to be decided in a custody proceeding is the best ...

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