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PAUL F. ESPERSEN v. SHERRE DAVIDOW (12/23/86)

filed: December 23, 1986.

PAUL F. ESPERSEN, APPELLANT,
v.
SHERRE DAVIDOW



Appeal from the Order of the Court of Common Pleas, Westmoreland County, Civil Division, at No. 6810 of 1984.

COUNSEL

C. James Kutz, Greensburg, for appellant.

Sanford P. Gross, Pittsburgh, for appellee.

Brosky, Kelly and Roberts, JJ.

Author: Brosky

[ 359 Pa. Super. Page 532]

This appeal is from an Order directing that custody of appellant's daughter remain with her natural mother, the appellee herein.

Appellant presents three issues for our consideration: (1) whether the trial court's findings of fact were supported by the evidence; (2) whether the evidence presented at trial established a substantial change in circumstances since the entry of the consent custody order; (3) whether the best interests of the child are served by granting custody to the appellant. We have reviewed the entire record, including briefs submitted by counsel and the opinion and findings of fact and conclusions of law of the trial court.

[ 359 Pa. Super. Page 533]

Because we agree with appellant that the evidence established a substantial change of circumstances from the entry of the initial custody order, we vacate the order of court continuing custody in appellee, and remand the case for proceedings consistent with this opinion.

The parties to this appeal were married on September 8, 1962. From this marriage were born three children. The third child, Shannon, born May 5, 1976, is the subject of the custody dispute presently before us. The parties were divorced on March 10, 1981 by decree of the Court of Common Pleas of Allegheny County. Pursuant to the divorce a "Property Settlement Agreement" was entered into and made part of the decree. Paragraph 9 of the "Property Settlement Agreement" entitled "Visitation" established "general care, custody and control" of the minor child in the mother, subject to "regular, reasonable and liberal right of visitation and partial custody" in the husband.

Subsequent to the divorce, Shannon lived in the family residence until November, 1983, when she and her mother moved next door to the residence of Jerry Davidow. Appellee subsequently married Mr. Davidow in July of 1984 whereupon appellee, with Shannon, her new husband and his two daughters, moved to a new residence in North Huntingdon, Pennsylvania. Shannon has resided in her new residence in North Huntingdon with her mother, stepfather and two stepsisters until the present time.

Shannon's father also remarried on December 11, 1981, and subsequently had a house constructed in a suburb of Butler, Pennsylvania, where he currently resides with his present wife. Pursuant to the custody and visitation agreement previously entered, appellant routinely picked up Shannon for weekends and one night a week visits. Subsequent to appellee's remarriage to Mr. Davidow, Shannon began making complaints about her home life during visits with her father. Shannon also stated that she ...


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