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ROBERT D. MURPHEY v. CATHERINE HATALA (02/06/86)

filed: February 6, 1986.

ROBERT D. MURPHEY, APPELLANT,
v.
CATHERINE HATALA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 83-10863.

COUNSEL

Elaine Smith, Philadelphia, for appellant.

Andrew M. Knowlton, Philadelphia, for appellee.

McEwen, Montemuro and Tamilia, JJ.

Author: Montemuro

[ 350 Pa. Super. Page 436]

This is an appeal by appellant/father from an order granting sole physical custody of the parties' six-year-old son, Brendan, to appellee/mother.

The parties were married in November 1977 and separated in March 1983. Following their separation, the parties mutually agreed to a joint physical and legal custody arrangement for their son. In July of 1984, appellant filed a complaint in divorce. The parties abided by their mutual agreement for twenty-seven (27) months. Under this agreement, Brendan spent alternating days of the week with each parent. This system afforded Brendan the opportunity to spend three (3) days of the week with appellant and four (4) days with appellee. The parties live in close proximity to each other in Center City Philadelphia. Both parents live far enough away from Brendan's school that driving is necessary.

Appellant filed a petition for confirmation of the mutually agreed upon joint custody arrangement. Following an extensive hearing, which included testimony from a clinical

[ 350 Pa. Super. Page 437]

    sociologist and a licensed psychologist, the court entered the following order:

AND NOW, this 29th day of May, 1985, after testimony and argument before the Honorable Frank M. Jackson, Appellant's Petition to Confirm Joint Legal and Joint Physical Custody, it is hereby ordered that Confirmation of Custody of the Child, BRENDAN DYLAN MURPHEY is awarded to mother, CATHERINE HATALA with Shared Custody in Father, ROBERT MURPHEY, who shall have BRENDAN on alternate weekends from the close of school on Friday to the commencement of school on Monday morning commencing May 24, 1985. Father to have BRENDAN every Wednesday from close of school to commencement of school on Thursday morning. In the event that Father commences teaching on Wednesday evening, he may choose to substitute either Tuesday or Thursday. Both parties shall alternate the following holidays: Fourth of July; Labor Day; Memorial Day; Thanksgiving; Christmas; New Years and Easter and alternating each year commencing with Father on Fourth of July, 1985. During summer vacation, Father shall have three weeks of his choice. During the Christmas and New Years vacation, both parties shall split the period equally.

A supersedeas was requested by counsel for Father, ROBERT MURPHEY, and is denied. Counseling is directed by both parties and child.

Appellant has presented three issues for our review:

I. Did the lower court abuse its discretion in granting sole custody of minor child to Appellee/Mother absent any evidence on the record to support a finding that a sole custody arrangement is in the best interest of the child?

II. Did the lower court abuse its discretion by awarding sole custody to Appellee/Mother when the record can support no finding that the Appellee/Mother is the more nurturing parent and in

[ 350 Pa. Super. Page 438]

    contravention of the Commonwealth's Custody and Grandparents Visitation Act?

III. Did the lower court exceed the scope of its judicial authority by granting sole custody sua sponte when the issue before the court was a Petition to Confirm Joint Legal and Joint Physical Custody?

Appellant's brief at 2.

We shall first address appellant's third issue. Having examined the record, the briefs of counsel and the opinion of the court below, we agree with the court below that there is no merit whatsoever in this claim. We adopt the court's opinion as to ...


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