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KEVIN MURRAY SMITH v. TARA WARD SMITH (12/28/84)

filed: December 28, 1984.

KEVIN MURRAY SMITH, APPELLANT,
v.
TARA WARD SMITH



No. 00440 HARRISBURG, 1983, Appeal from an Order in the Court of Common Pleas, Civil Division, of Cumberland County, No. 88 Civil, 1982.

COUNSEL

Hubert X. Gilroy, Carlisle, for appellant.

Thomas J. Williams III, Carlisle, for appellee.

Wickersham, Wieand and Hester, JJ.

Author: Hester

[ 337 Pa. Super. Page 10]

In this appeal, we are asked to review an Order of Court, awarding custody of the minor subject of these proceedings, Kevin Murray Smith, Jr., to the mother during the school year and to the father during summer vacation and certain holidays. The father, appellant herein, contends that the lower court erred in finding that the best interests of the child were met by granting custody to the mother during the academic year. In the alternative, appellant argues that the trial judge should have awarded joint custody

[ 337 Pa. Super. Page 11]

    whereby the child lived with each parent for six months and attended two different schools each year. We hold that the lower court properly rejected appellant's contention and we affirm the order granting custody to the mother during the period the child attends school.

Kevin, Jr., was born February 16, 1978. The parties resided in Connecticut, Virginia, and finally Carlisle, Pennsylvania, as the father attempted to find permanent employment. In July of 1981, the parties separated and the mother returned to her hometown of Myrtle Beach, South Carolina.*fn1 A consent Order was entered on July 21, 1982 establishing a shared custody arrangement which provided that custody of the child was divided equally between the parties throughout the year. The Order explicitly recognized that "the child is not now of school age and will not be entering school until the Fall of 1983, at which time some modification may be necessary."

On June 27, 1983, the mother petitioned the court for modification of the custody order, alleging that the child was about to enter school and that the periods of custody permitted to the father during the winter months would interfere with the child's schooling. Following a hearing on August 10, 1983, the court issued a joint custody order whereby the mother was awarded custody of the child throughout the school year and the father received custody during the summer months. Liberal visitation for the non-custodial parent was also provided. The father thereafter pursued this appeal.

Our standard of review in custody cases has recently been clarified by the Pennsylvania Supreme Court in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Therein, the Court stated:

[ 337 Pa. Super. Page 12]

    an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support the trial court's factual conclusions, but may not interfere with those conclusions unless they are unreasonable in Page 12} light of the trial court's ...


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