Appeal from the Order of the Superior Court entered May 3, 1985, at No. 02546, Philadelphia, 1984, Reversing the Order of the Court of Common Pleas of Luzerne County, Civil Division, Entered on September 12, 1984, at No. 489-C of 1981. 345 Pa. Superior Ct. 628, 496 A.2d 858.
Elliot B. Edley, Wilkes-Barre, for appellant.
Lawrence D. MacDonald, Susan A. Maza, Wilkes-Barre, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This appeal concerns the custody of a nine year old boy, Frank J.R. Lombardo. Following extensive testimony taken at a two-day hearing, the Court of Common Pleas of Luzerne County determined that the child's best interest would be served by transferring primary custody of Frank to his father, Joseph F. Lombardo, Appellant herein, and modified an earlier custody award in favor of the mother. The Superior Court undertook an independent review of the record and by per curiam order reversed the trial court's determination thereby retaining custody in the mother, now Kathleen Grisar.*fn1 Since it appeared that Superior Court exceeded its proper scope of review in this matter we granted Appellant father's petition for review.*fn2 We now reverse and reinstate the trial court's order.
The record discloses that Joseph and Kathleen were married on April 23, 1976. This marriage produced one child, Frank, born on November 15, 1977. The parties separated in early 1979, and were divorced on September 9, 1981. In accordance with a stipulated agreement which was part of
the divorce proceeding, and which was subsequently entered as a court order, the mother received primary custody of Frank and the father received partial custody. The agreement provided that the father would have custody every other weekend, on holidays, and in the summer beginning one week after school ended through July 31st. During the summer the mother had the option of bi-weekly custodial visits. Both parents lived in Pennsylvania, the mother residing in suburban Philadelphia, and the father in Luzerne County.
Initially, the arrangement seemed to work well. The mother was employed and arranged for day care for Frank at the Lane Montessori School. The father had extensive contact with Frank and there was apparently full cooperation between the mother and father. The first difficulty arose in March of 1983, when the mother experienced employment problems and severe financial difficulties. She voluntarily transferred custody of Frank to his father. The mother testified that this transfer of custody was based on her severe financial problems and job pressures. She could not afford the apartment in which she and Frank lived, and she had been advised by her employer that if her job performance did not improve she would be dismissed. The record reveals that she maintained an apartment in the fashionable Main Line area of Philadelphia, the rent for which exceeded $500.00 per month. She also had to pay over $30.00 per week for day care services while she worked. Her take home pay was approximately $217.00 per week and the father was required to pay $45.00 per week in support. Later, when she lost her job, her income was reduced to unemployment benefits of approximately $150.00 per week. While the mother stated that the reason for this temporary relinquishment of custody was that she could no longer afford the apartment and that she intended to find another place, she never gave up the apartment until her subsequent marriage on March 31, 1984.
Frank was taken by his father from the Philadelphia area and relocated to his parental ...