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COMMONWEALTH EX REL. MICHAEL ROBINSON v. ROBERT R. ROBINSON (06/28/84)

decided: June 28, 1984.

COMMONWEALTH EX REL. MICHAEL ROBINSON, A MINOR AND KRISTIN LEIGH ROBINSON, A MINOR, BY THEIR NATURAL MOTHER, SHARON LYNN HANGEY ROBINSON
v.
ROBERT R. ROBINSON, APPELLANT



No. 91 E.D. Appeal Docket 1983, Appeal from the Order of the Superior Court of Pennsylvania, No. 1784 Philadelphia, 1982, vacating the Order of the Court of Common Pleas of Montgomery County, No. 80-2831, Pa. Superior , Nix, C.j., and Larsen, Flaherty, Zappala and Papadakos, JJ. Zappala, J., filed a concurring opinion. Nix, C.j., concurred in the result. McDermott and Hutchinson, JJ., did not participate in the consideration or decision of this case.

Author: Papadakos

[ 505 Pa. Page 230]

OPINION

Robert R. Robinson appeals a Superior Court order vacating a Montgomery County Common Pleas Court child custody award and remanding for further proceedings. We reverse.

Robert married Sharon Lynn Hangey on June 28, 1975. Both were married once before. During their marriage one child was born, Kristin Leigh, on February 24, 1976. In October, 1977, Robert adopted Sharon's son by her previous marriage, Michael, born October 11, 1972. In August, 1978, Sharon separated from Robert, leaving the children with him in the marital home. She lived for a short time with a friend, Sally Brown, but in September, 1979, began cohabiting with Joseph Lochetto, to whom she is now married and by whom she has a daughter, Gina, born in 1981. She filed for divorce in September, 1979, and later, in February, 1980, she commenced this habeas corpus action for custody of Kristen and Michael. The divorce was finalized on March 31, 1981, and both parties remarried thereafter.

[ 505 Pa. Page 231]

On October 10, 1980, following a hearing, the trial court awarded custody to Robert, concluding that he would be a more dependable provider for the children's well-being. Sharon appealed to Superior Court, which, by order of November 30, 1981,*fn1 vacated the award on the basis that the trial court interviewed the children off the record*fn2 and that it failed to provide an opinion containing a sufficiently comprehensive analysis of the record and a complete explanation of its decision. Superior Court remanded for a more detailed opinion, directing the trial court to conduct an additional hearing for the purpose of updating the evidence, and noted that if the court chose to interview the children, it should have transcribed the testimony. There is no indication in the opinion, and none in the remainder of the record before us, that either party objected to the interview or to the failure to transcribe the testimony.

On remand, the common pleas court ordered, on its own initiative, a home investigation of both parties. A hearing was conducted on May 3, 1982, to update the evidence, but the trial court chose not to interview the children. Neither party objected to the court's decision not to interview the children, and they both agreed that the home investigation report should be included in the record and considered by the court, although the preparer of that report had not testified at the hearing. Subsequently, the trial court issued its decision on June 3, 1982, noting that it had considered the report, and awarded custody again to Robert.

Sharon appealed the second common pleas court order to Superior Court, contending that the court erred by failing to

[ 505 Pa. Page 232]

    interview the children and by failing to give adequate consideration to those portions of the home investigation reports and testimony which were favorable to her. Superior Court, by order of May 13, 1983, vacated and remanded again. It considered and rejected the argument that the trial court erred by not interviewing the children, but declined consideration of Sharon's arguments respecting the home investigation reports and testimony, and proceeded, on its own initiative, to review the trial court's findings. It also raised, on its own initiative, issues as to whether the trial court erred in considering the home investigation reports because the preparer did not testify, whether the trial court erred in considering Michael's school report card in the absence of testimony by a school official, and, also, whether there was an insufficient amount of disinterested testimony in the record. All these questions were answered in the affirmative.*fn3 Superior Court also decided that there was insufficient analysis in the court's opinion linking the evidence with its conclusions that Robert has provided the children with a happy, stable environment, and that Sharon is less reliable and stable than is Robert. It then remanded for the taking of additional disinterested testimony and yet another hearing to update the evidence, and another more comprehensive opinion.

Robert subsequently petitioned for allowance of an appeal, and we granted allocatur since it appears that Superior Court has expanded the traditionally broad scope of review standard in custody cases to such a degree that the role of trial judge has been reduced to hearing examiner and the role of our Superior Court has swelled to include that of trial judge and appellate counsel. Our custody cases have now begun to drag on interminably, as this case demonstrates, because our Superior Court apparently lacks the confidence which we have in our trial bench. We now

[ 505 Pa. Page 233]

    address Robert's appeal more than four years after the inception of the case.*fn4

I.

Robert now argues, and we agree, that the Superior Court exceeded the proper scope of appellate review in this matter by reviewing the record independently of the issues raised by the parties. This was error because the burden is on the appellant, and not the appellate court, to demonstrate that the trial court's decree is, under the evidence, manifestly erroneous or based on an error of law. See, e.g., Trefsgar v. Trefsgar, 261 Pa. Superior Ct. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Superior Ct. 122, 90 A.2d 270 (1952). Issues not raised on appeal, therefore, are effectively waived. Compare Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 443 n. 4, 292 A.2d 380, 383 n. 4 (1972) (habeas corpus appeals involving the custody of children are treated just as any other habeas corpus appeal); Commonwealth ex rel. Kress v. Rundle, 425 Pa. 142, 228 A.2d 772 (1967) (issues not raised before the trial court are waived in habeas corpus appeal); Sheppard v. Old ...


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