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EDWARD THOMAS PARKER v. LYNN MARIE PARKER MACDONALD (08/09/85)

filed: August 9, 1985.

EDWARD THOMAS PARKER, APPELLANT,
v.
LYNN MARIE PARKER MACDONALD



Appeal from the Order of November 14, 1984, in the Court of Common Pleas of Philadelphia County, Family Division, at No. D.R. 83-00103.

COUNSEL

Arnold Machles, Philadelphia, for appellant.

Anthony J. DeFino, Philadelphia, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Hester

[ 344 Pa. Super. Page 555]

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County which awarded shared custody to the parties of their minor child. Father appellant argues that this order, which represents a change from the pre-existing custody order, was based upon insufficient evidence to establish a substantial change of circumstances. Mother appellee contends that this appeal is interlocutory and should be quashed.*fn1

[ 344 Pa. Super. Page 556]

Before addressing the issues raised in this appeal, a recitation of the factual and procedural history is necessary. The parties were married on June 17, 1979, and Brian Parker was born on March 24, 1980. In December, 1982, the parties separated, and were ultimately divorced on April 11, 1984. While married, they resided in Philadelphia. Upon their separation, appellee moved to Florida to seek employment. Pursuant to an understanding between the parties, until appellee was in a position to maintain continuing custody of Brian in Florida, the child would reside with appellant in Philadelphia. Several months later, the parties filed cross-petitions for custody. Following a full hearing in October, 1983, the court entered an award of shared custody to the parties, with physical custody vested in appellant, and specified periods of visitation awarded to appellee.

Appellee remarried in April, 1984, terminated her employment as an executive secretary, and filed a petition seeking primary custody of Brian in June, 1984. A hearing was held on appellee's petition and, by Order dated November 14, 1984, the lower court awarded shared custody of Brian to the parties,*fn2 with appellant having primary custody until December 28, 1984, then primary custody shifting to appellee until April 15, 1985, then to appellant until August 1, 1985, when the child is to be returned to appellee.

Initially, we will discuss appellee's Petition to Quash this appeal.*fn3 Appellee contends that jurisdiction does not exist in this matter pursuant to 42 Pa.C.S.A. § 742 by reason that said Order of the lower court is not a final order as contemplated by this statute.*fn4 Rather, appellee asserts that the challenged order is interlocutory in nature, does not

[ 344 Pa. Super. Page 557]

    give rise to an interlocutory appeal as of right, see Pa.R.A.P. 311, and that appellant has failed to satisfy the requirements of Pa.R.A.P. 1311, which outlines the steps to be followed ...


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