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EDWARD T. ENGLISH v. MARTHA E. ENGLISH (12/23/83)

filed: December 23, 1983.

EDWARD T. ENGLISH, APPELLANT,
v.
MARTHA E. ENGLISH



No. 287 Philadelphia, 1983, Appeal from the Order of January 21, 1983, Court of Common Pleas, Schuylkill County, Civil Division at No. S-848-1981.

COUNSEL

Frank Robert Cori, Orwigsburg, for appellant.

Lanny George Felty, Pine Grove, for appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Johnson

[ 322 Pa. Super. Page 237]

Appellant Edward T. English appeals from the trial court orders (1) awarding primary custody of his son Matthew to appellee, the natural mother and (2) holding him in contempt of an earlier custody order which awarded primary custody to appellant and granted visitation rights to appellee. Because we find the record inadequate, we reverse and remand the custody order. We also affirm the contempt order.

The record indicates that the parties were married in April of 1979 and their only child, Matthew, was born October 13, 1979. The parties resided together until March of 1981 when appellee left the marital home. Subsequently, appellant, who continued to care for Matthew, petitioned for confirmation of custody. The evidence produced at the initial custody hearing revealed that appellant, a horse trainer, resided in a mobile home on a farm with the child. Because of his extensive work schedule, the child was taken to a babysitter for care during the day. Appellant's home and income were deemed adequate. Appellee, initially upon separation, resided with her sister and a third party in the third party's home in Philadelphia. Appellee was, at that time, involved in establishing a business venture, requiring her to be away from her residence for periods of time, thereby delegating Matthew's care to her sister.

The trial court determined, inter alia, that custody should be awarded to appellant because of his greater maturity and stability. Although the court found both parties to be fit, it was concerned with appellee's voluntary

[ 322 Pa. Super. Page 238]

    abandonment of the child upon separation, her lack of maturity and the more suitable child care arrangements made by appellant.*fn1 Therefore, custody was awarded on December 30, 1981 to appellant with liberal visitation rights granted to appellee. No appeal was taken.

On September 2, 1982 appellee was refused visitation by appellant's babysitter who had appellant's consent to such refusal. There had been some hostility between appellee and both appellant and the babysitter prior to this incident. Appellant and the babysitter thereafter refused to allow appellee to see Matthew. Appellee filed a petition for contempt alleging appellant's violation of the December 30, 1981 order granting appellee visitation. The petition also prayed for modification of the previous custody order, to wit: custody to be awarded to appellee. Following a hearing, the trial court by order dated December 22, 1982 awarded primary custody of Matthew to appellee and granted appellant liberal visitation rights. By order dated December 23, 1982 appellant was held in contempt for disobeying the 1981 order regarding appellee's visitation.*fn2

Our standards of review in custody matters have been summarized in Lewis v. Lewis, 267 Pa. Super. 235, 240-41, 406 A.2d 781, 783-4 (1979):

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Thus, while it will defer to the lower court's findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of ...


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