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BRENDON L. BEERS v. JOHN L. BEERS (05/17/85)

filed: May 17, 1985.

BRENDON L. BEERS
v.
JOHN L. BEERS, APPELLANT



Appeal from the Order of June 27, 1984 in the Court of Common Pleas of Armstrong County, Civil Division, at No. 1982-1028.

COUNSEL

Bradley K. Hellein, Kittanning, for appellant.

Alberta R. Beardsley, Kittanning, for appellee.

Del Sole, Hester and Feeney, JJ.*fn*

Author: Hester

[ 342 Pa. Super. Page 467]

In this appeal, appellant seeks our review of an Order of Court awarding custody of his daughter to appellee, the child's mother. Appellant received liberal visitation rights, however, as in many of these cases, the non-custodial parent wants that degree of participation in his child's life which only primary custody affords.

The parties to this action were married on April 9, 1977, and resided in Armstrong County. The minor subject of these proceedings, Jennifer, was born on March 29, 1979. In June of 1982, the parties separated; the mother moved to Jamestown, New York, and the father moved to Indiana, Pennsylvania. The mother immediately assumed primary custody of the child. An agreement by the parties in September of that year formalized the arrangement, which continued until March 3, 1983. On that date, the parties agreed to share custody of Jennifer, with the parties alternating custody every two weeks.

[ 342 Pa. Super. Page 468]

In March of 1984, appellee filed a complaint seeking principal custody of the child in view of her impending attendance at kindergarten. Appellant filed a cross-complaint, and a hearing was held on the matter in June of 1984. After reviewing the evidence and weighing the testimony adduced at trial, the lower court awarded primary custody of Jennifer to appellee during the academic year, and custody to appellant during the summer months, with liberal visitation to the non-custodial parent. Appellant thereafter perfected this appeal.

The fundamental issue presented by this appeal is whether the lower court erred in awarding primary physical custody to appellee. In reviewing custody orders,

     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 these conclusions unless they are unreasonable in light of the trial court's factual findings [,] . . . and, thus, represent a gross abuse of discretion . . . .

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (citation omitted; emphasis in original). In that opinion, the Supreme Court clearly placed the burden of proving that the trial court's decree was manifestly erroneous or that it constituted a gross abuse of discretion upon appellant. Id. If the party challenging the order of court fails to meet his or her burden, then we have no choice but to affirm the decision of the trial judge. In doing so, we defer to his unique ability to observe the demeanor of the parties and evaluate the testimony of the witnesses.

In order to support his burden, appellant alleges that the lower court erred in finding that (1) the child's educational needs would be adequately served if placed with either parent; (2) the mother had been the primary caregiver prior to the shared custody agreement; (3) the mother would have more time to spend with the child; and (4) in failing to find that appellant's ...


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