Appeal from the Order of the Court of Common Pleas, Civil Division, of Lycoming County at No. 82-21, 502. Appeal from the Order of the Court of Common Pleas, Civil Division, of Lycoming County at No. 82-21, 502.
Gary T. Harris, Williamsport, for appellants.
Richard A. Vanderlin, Assistant District Attorney, Williamsport, for appellees.
Cavanaugh, Wickersham and Anderson, JJ.*fn* Cavanaugh, J., files a concurring opinion.
[ 344 Pa. Super. Page 403]
John and Edith Steele appeal from the orders of the Court of Common Pleas of Lycoming County denying them primary custody of their grandchildren, Heidi and Jason Gatz, presently ages ten and five, respectively.
Once again, this court is called upon to assume the unenviable role of King Solomon and render judgment as to the proper custodians of two small children. We must choose from among maternal and paternal relatives warring over the future custody of the children. This sad and troublesome task is made even more difficult because of the unique facts of this custody/adoption case, which has a long and confusing history. At various times throughout the litigation at least five sets of contestants have sought custody of Heidi and Jason. All the participants in this case are related to the children, being either grandparents or aunts and uncles.
Heidi Gatz was born to Janet Steele on December 9, 1974. In March 1979, Janet Steele married Heidi's father, Mack Gatz, and on December 11, 1979, Jason Gatz was born. On October 12, 1982, Janet Steele Gatz died as a result of multiple stab wounds inflicted by her husband, Mack. Mack Gatz pleaded guilty to Janet's murder and is presently serving a sentence of incarceration. Heidi witnessed the death of her mother and both children have undergone, and presumably continue to undergo, psychiatric counseling and therapy.
After their mother's death and their father's arrest, Heidi and Jason were taken to the home of Janet's parents, John and Edith Steele, appellants herein. Thereafter, custody petitions were filed by various members of the maternal and paternal families. By the time of the first hearing in March 1983, however, the litigants had been narrowed to
[ 344 Pa. Super. Page 404]
Frank and Sandra Heddings, Mack's sister and brother-in-law, and John and Edith Steele, Janet's parents. A hearing was held on the matter over several days in March and April 1983. On May 12, 1983, the lower court issued its opinion and order awarding primary custody of Heidi and Jason to the Heddings. The Steeles mistakenly filed exceptions to the order, which were denied on June 16, 1983. Our court granted appellants' petition to appeal nunc pro tunc and the first of the two instant appeals, at No. 1659 Philadelphia 1983, was filed.
Following the May 1983 order, the children went to live with their paternal aunt and uncle, the Heddings. This arrangement proved unsuccessful, however, and on September 28, 1983, a motion to change custody from the Heddings to appellants was filed by appellants. At the November 7, 1983 hearing, the paternal grandparents, Joseph and Betty Gatz, appeared and expressed interest in obtaining custody of the children. The lower court advised them that if they wished to intervene in the proceedings, they should file an appropriate petition within thirty days. On December 14, 1983, the Gatzes filed an adoption petition, to which was attached the children's father's consent. Appellants subsequently filed a motion to quash the adoption petition and the court held a hearing on the question of custody and/or adoption on April 4-5, 1984. The court advised the parties that if the petition for adoption were denied, he would then treat the Gatzes' pleading as though it were a petition for custody. The court also granted the parties' motions that it consider all of the evidence presented at the prior custody proceedings in May 1983, as well as its findings of fact in that case. On May 24, 1984, the lower court issued its second opinion and order denying the Gatzes' petition for adoption, but awarding primary custody of the children to Joseph and Betty Gatz, with visitation to the Steeles. The Steeles timely appealed the order of May 24, 1984, which appeal is docketed at No. 1780 Philadelphia 1984. Upon request, the two appeals were consolidated for determination by this court.
[ 344 Pa. Super. Page 405]
Appellants raise the following issues before us:
1. Did the trial court err in admitting hearsay testimony concerning alleged sexual improprieties between one of the litigants, John Steele and the deceased parent (Janet Steele Gatz), mother of the two children involved in this custody proceeding?
2. Did the trial court err in basing certain of its factual findings upon hearsay testimony?
3. Did the trial court err in making various factual findings which have no evidentiary basis in the proceedings or record?
4. Did the trial court err in permitting procedural irregularities?
5. Did the trial court err in failing to provide any analysis of the record?
6. Did the trial court err in permitting the allegations of incest to so permeate and influence the proceedings, and the Court's thinking as to shift the intended emphasis of the proceedings from the "best interests of the children" to a trial on whether there had been an incestuous relationship between the childrens' deceased mother and her father?
Brief for Appellants at 3. We will begin with the procedural issues.
Appellants correctly note that there were a number of procedural irregularities surrounding the involvement of Joseph and Betty Gatz (the Gatzes) in the "second" phase of this custody case. In particular, (1) the lower court failed to give proper notice to the Gatzes as required by Pa.R.C.P. Nos. 1915.6(b) and 1915.16(b); (2) the Gatzes failed to intervene within thirty days as required by the court's order and failed to file a counterclaim asserting their right to custody as required by Pa.R.C.P. No. 1915.5(b); (3) the lower court treated the Gatzes' motion for adoption as a motion for custody; and (4) appellants' motion to quash the Gatzes' adoption petition was never formally ruled upon by the court.
[ 344 Pa. Super. Page 406]
The first alleged defect raised by appellants has no merit because appellants have no standing to request a reversal or remand upon the basis of defective notice given to the Gatzes. Furthermore, appellants do not allege that this procedure caused any prejudicial harm to themselves or the children.
With respect to Appellants' second contention, Pa.R.C.P. No. 126 provides that:
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
The substantial rights of the parties that must be considered here and which are of paramount importance are the best interests of the children, not the interest of the litigants. In re Custody of Temos, 304 Pa. Super. 82, 450 A.2d 111 (1982). The children were not adversely affected by this procedural defect. If the court were to deny the Gatzes custody on the basis of their failure to intervene within thirty days as required by the court's order or for their failure to file a counterclaim, custody of the children would have been decided on the basis of a procedural defect, rather than on the merits. Obviously, this could not have been in the best interests of the children. Similarly, the Rules of Civil Procedure for Custody and Visitation mandate that no judgment may be entered by default in an action for custody and visitation. Pa.R.C.P. No. 1915.9. As the note to this unique rule points out, the determination of the best interests of a child is never a purely legal determination, but requires a multitude of factual determinations.
In any case, appellants were not prejudiced by the Gatzes' failure to file a counterclaim asserting their right to custody. The Gatzes filed an adoption petition which notified appellants of their intention to intervene into the custody of Heidi and Jason. Furthermore, by the ...