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PAUL M. MOORMAN AND DIANA C. MOORMAN v. J.B. TINGLE AND ALMA TINGLE (10/14/83)

filed: October 14, 1983.

PAUL M. MOORMAN AND DIANA C. MOORMAN, HUSBAND AND WIFE
v.
J.B. TINGLE AND ALMA TINGLE, HUSBAND AND WIFE, APPELLANTS



Nos. 520 Pittsburgh, 1982, 673 Pittsburgh, 1982, Appeal from the Orders of the Court of Common Pleas of Clearfield County, Civil Division, at No. 80-1022-C.D.

COUNSEL

Susan H. Wilkie, Pittsburgh, for appellants.

Richard A. Bell, Clearfield, for appellees.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Brosky

[ 320 Pa. Super. Page 350]

In this appeal, we are asked to review an order awarding custody of Michael David Shofestall to his mother, Diana C. Moorman. Appellants, the Tingles, are Michael's maternal grandparents with whom he lived for most of his first 5 1/2 years and who ask that custody be awarded to them. For the reasons that follow, we affirm.

Diana Moorman became pregnant with Michael in 1976 when she was an adolescent. She married his father before Michael was born, but the union was a short one, ending in divorce the following year. For a period prior to and around the time of their divorce, Diana and for some time, her husband, apparently resided in a trailer located on her parents' property. It is undisputed that Michael lived on his grandparents' property and was largely under their care from the time he was approximately six weeks old. Diana resided at her parents' residence, apparently with some irregularity, until November, 1977 when she decided at the suggestion of a sister to move from their home in Rockton, Pennsylvania to Dayton, Ohio. In January, 1978, Diana began studying at Wright University where she was also employed.

Prior to her move, Diana requested that her parents care for Michael. Diana claims that it was understood that the arrangement was to be a temporary one; her parents disclaim any such agreement. In any event, Diana and Michael's father agreed in November, 1977 that her parents would have custody of Michael and both signed consent forms to that effect. The Tingles sought and received an

[ 320 Pa. Super. Page 351]

    order of court awarding custody to them on December 30, 1977.

Diana visited with Michael following the custody award, although she and her parents disagree as to the frequency of such visits. The lower court found them to be "periodic."

In August, 1979, Diana married Paul Moorman, who was also a Wright University student. Their first child was born in June, 1980.

In March, 1980, Diana commenced legal proceedings to obtain custody of Michael. In August, 1980, a consent order was entered which provided that Diana would have gradually increasing periods of partial custody, culminating in full custody in approximately one year. Unfortunately, the parties did not comply with this order and in July, 1981, a hearing was held to determine custody.

Following that hearing and an additional one held in March, 1982, the lower court issued its orders of April 19 and April 21, 1982 which are the subjects of this appeal and which directed that custody be given to Diana Moorman.

Appellants raise several issues but primarily they contend that the lower court abused its discretion in awarding custody of Michael to his mother despite the testimony of psychologists who said that Michael would suffer irreparable harm if he were forced to move from his grandparents' home.*fn1

It is well established that our scope of review in custody cases is broad.*fn2 Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1979). Nonetheless, a broad scope of review should not be construed as providing the reviewing tribunal with a

[ 320 Pa. Super. Page 352]

    license to nullify the fact-finding functions of the court of the first instance. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). The trial court is in a better position to appraise the credibility of witnesses and we will reverse only for an abuse of discretion. We are not, however, bound by the conclusions or inferences drawn from the facts by the trial court. Ferencak v. Moore, 300 Pa. Super. 28, 445 A.2d 1282 (1982).

In Ellerbe v. Hooks, 490 Pa. 363, 367-8, 416 A.2d 512, 513-14 (1980), our Supreme Court adopted the standard to be applied in custody disputes between a parent and third party which was described by Judge Spaeth of our court in In Re Custody of ...


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