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K.L.H. v. G.D.H. (08/26/83)

filed: August 26, 1983.

K.L.H.
v.
G.D.H., APPELLANT



No. 2461 Philadelphia 1981, Appeal from the Order of September 10, 1981, Court of Common Pleas, Carbon County, Civil, at No. 81-HC-35.

COUNSEL

William G. Schwab, Lehighton, for appellant.

John F. Gibbons, Lehighton, for appellee.

Spaeth, Beck and Johnson, JJ. Spaeth, J., files a dissenting opinion.

Author: Johnson

[ 318 Pa. Super. Page 333]

This appeal arises from the trial court's award of custody of Brian and Darla H. to their mother K.L.H., pursuant to her Petition for Habeas Corpus. Appellant G.D.H., the natural father, has appealed. We affirm the order of the trial court.

The parties were married in January of 1964. Four children were born to this marriage: Paula, James, Brian and Darla.*fn1 The parties separated in March of 1976, with K.L.H. moving out of the family residence in Jim Thorpe, Pennsylvania and relocating to Dover, Delaware with Paula, Brian and Darla. James remained with his father. The parties were divorced in 1979, but no formal custody agreement or order was made. This custodial arrangement continued until the summer of 1981.

On June 13, 1981, Darla and Brian arrived for a two-week vacation with their father. In the course of the visit, the father determined from conversations with the children that they were being neglected and abused by their mother and her paramour, John Murphy, with whom she lived. The children told their father that they did not wish to return to their mother's home, and in fact refused to accompany her back to Delaware. They remained at their father's home in Jim Thorpe, where he lives with his wife, Debra, their infant son, Gregory, and his son born of his marriage to K.L.H., James.

[ 318 Pa. Super. Page 334]

K.L.H. filed a Petition for Writ of Habeas Corpus on July 8, 1981. The court entered an interim custody order on August 5, 1981, giving custody to the mother. On August 7, the father filed a Petition for Plenary Jurisdiction to the Supreme Court of Pennsylvania, alleging that local rules of court which permitted an interim custody order to be issued were, inter alia, unconstitutional. The father also filed a Petition for Supersedeas to the trial court on August 10, which was denied. On August 20, 1981, the trial court confirmed the parties' stipulation permitting the father to take custody of the children and allowing visitation to the mother pending the final outcome of the mother's Habeas Corpus petition. After full and comprehensive hearings on August 28 and September 9, 1981, custody of both children was awarded to K.L.H., with visitation to G.D.H.

Appellant G.D.H. has raised two issues on appeal: (1) whether the local rules of court, permitting the trial court to issue an interim custody order prior to a full hearing, violate the provisions of 42 Pa.C.S.A. ยง 5345, and whether said local rules are unconstitutional and contrary to the best interests of the children, and (2) whether the trial court erred in determining the best interests of the children by failing to fully consider the stability, home environment, religious training and household members of the respective parental homes, to give adequate consideration to the children's preferences, and to obtain independent testimony concerning the respective living environments.

We need not address the first issue raised by appellant, as the stipulation entered on August 20, 1981, giving appellant interim custody of the children, rendered this issue moot. See Commonwealth ex rel. Watson v. Montone, 227 Pa. Super. 541, 323 A.2d 763 (1974) (existence of actual controversy is essential to appellate jurisdiction and if event occurs rendering it impossible for appellate court to grant any relief, issue is moot). As appellant received the relief he desired, namely interim custody of the children, there no longer exists an actual controversy.

[ 318 Pa. Super. Page 335]

The primary concern in child custody cases is the best interests of the children, including the children's physical, intellectual, emotional, moral and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); In re Custody of J.S.S., 298 Pa. Super. 428, 444 A.2d 1251 (1982). In a contest between parents, each party has the burden of proving that the best interests of the child will be served by awarding custody to him or her. In re Custody of J.S.S., supra; Beichner v. Beichner, 294 Pa. Super. 36, 439 A.2d 737 (1982).

It is clear that the scope of our review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). However, we cannot nullify or usurp the fact-finding function of the trial court, as the trial court is in a superior position to appraise the attitudes, sincerity, credibility and demeanor of the witnesses. Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa. Super. 325, 442 A.2d 791 (1982), citing Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa. Super. 444, 427 A.2d 1370 (1981). Although we must defer to the trial court's findings of fact, we are not bound by the trial court's deductions and inferences. Commonwealth ex rel. Newcomer v. King, supra. Instead, we must exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice.*fn2 Id.

[ 318 Pa. Super. Page 336]

So as to facilitate this broad review, we consistently emphasize that the trial court must provide us with a complete record and a comprehensive opinion containing a thorough analysis of the record and specific reasons for the court's ultimate decision. In re Custody of J.S.S., supra; Page 336} Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979).

The trial court, in its well-reasoned opinion, initially determined that the children's allegations of physical abuse by their mother and her paramour were unsupported. The court gave careful scrutiny to the issue and properly weighed the testimony of a clinical psychologist who had interviewed the children and their parents, as well as the other members in the parents' household. The court also interviewed the children in chambers on this matter. We agree that the record fails to support appellant's allegations of physical abuse of the children by their mother and her paramour.

On further evaluation, the trial court found both households adequate to meet the children's needs. Both were financially able to provide for their physical requirements. However, the court determined that the households had markedly different approaches to life and child rearing. The trial court found K.L.H.'s household to be structured around definite rules and regulations, with discipline meted out as necessary. Emphasis in the mother's home is placed on education and participation by the children in wholesome activities.

The court found the father's household less rigid and more free-spirited in its approach to child rearing and more liberal in imposing rules and regulations on the children.

As to spiritual development, neither parent has close ties with any church, nor attends church regularly.

The court appears to have placed the greatest emphasis on the continuous custody of the children with K.L.H. for the five years preceding the court's decision. It was determined that the status quo has been so beneficial to the children that this factor was given controlling weight. This decision was based upon the children's success in school, their many friends, their participation in numerous organized activities, ...


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