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KENNETH L. GONZALEZ v. MARY ELIZABETH GONZALEZ. MARY E. AFF V. KENNETH L. GONZALEZ (12/28/84)

filed: December 28, 1984.

KENNETH L. GONZALEZ, APPELLANT,
v.
MARY ELIZABETH GONZALEZ. MARY E. AFF V. KENNETH L. GONZALEZ, APPELLANT



No. 01755 PHILADELPHIA, 1984, Appeal from an Order Entered June 21, 1984, in the Court of Common Pleas, Civil Division, of Delaware County, No. 81-12594. No. 01756 PHILADELPHIA, 1984, Appeal from an Order Entered June 21, 1984, in the Court of Common Pleas, Civil Division, of Delaware County, No. 83-11494.

COUNSEL

David McGlaughlin, Media, for appellant; Kathryn L. Hilbush, on brief.

Richard C. Tinucci, Media, for appellees.

Montemuro, Beck and Hester, JJ. Beck, J., concurred in the result.

Author: Hester

[ 337 Pa. Super. Page 4]

In this appeal, we are asked to review an Order of Court awarding custody of the parties' minor daughter, Katherine, to her mother, appellee herein. Appellant, Katherine's father, received liberal visitation rights. However, appellant seeks to be the primary custodian and thus pursues this appeal. Having closely scrutinized the record, we hereby reverse the order of the court below.

The parties were married on June 18, 1977, and Katherine was born on May 17, 1978. On August 15, 1981, the parties separated, with the mother leaving the marital abode. Katherine remained behind with her father. The mother initially moved in with her current husband's parents, and then into an apartment where her present husband joined her a short time later.

Approximately three weeks after his wife's departure in 1981, appellant filed a petition for custody. Appellee signed a stipulation dated September 21, 1981, granting custody of Katherine to her father, and requesting visitation of one weekend a month. In 1983, appellee requested and received an increase of visitation to two weekends per month.

Appellee was married in September, 1983, and immediately thereafter filed a petition seeking custody of Katherine. Two evidentiary hearings were held on May 18, 1984, and June 19, 1984. An Order was entered on June 21, 1984, awarding custody of Katherine to appellee during the school year and for approximately one-half of certain enumerated holidays. This appeal ensued.

The guiding principle in a child custody matter is to reach a decision which serves the "best interests" of the child. Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152

[ 337 Pa. Super. Page 5]

(1983). This interest encompasses the child's physical, intellectual, emotional, and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). In order to achieve this goal, an appellate court must closely scrutinize the factual findings of the lower court. If we ascertain, on review, that those factual findings are not supported by competent evidence, said findings are not binding upon us. Commonwealth ex rel. Springs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (Plurality opinion by (now Chief) Justice Nix). Of course, an appellate court has never been bound by deductions or inferences made by a trial court from the facts found. Id. However, where we perceive a gross abuse of discretion by the trial judge, we are duty-bound to interfere with that decision. Id.

Herein, appellant alleges that the lower court abused its discretion in transferring primary care of Katherine to appellee.*fn1 For the following reasons, we agree with appellant that the lower court ...


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