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MARIE THERESA BURKE v. MARY MODESTO POPE (09/21/87)

filed: September 21, 1987.

MARIE THERESA BURKE
v.
MARY MODESTO POPE, APPELLANT



Appeal from the order entered February 10, 1987 in the Court of Common Pleas of Delaware County, Civil Division, No. 85-4082.

COUNSEL

Albert Monjian, Philadelphia, for appellant.

Joyce A. Monaco, Media, for appellee.

McEwen, Tamilia and Hoffman, JJ.

Author: Tamilia

[ 366 Pa. Super. Page 490]

This is an appeal by Mrs. Mary Modesto Pope of a February 10, 1987 Order of the Court of Common Pleas of Delaware County awarding sole custody of her three minor daughters to Dr. Marie Theresa Burke with certain visitation and partial custody rights remaining in Mrs. Pope. Mrs. Pope is the natural mother of the children and contends that the hearing court acted against the best interest and welfare of her daughters by removing them from her custody and placing them with Dr. Burke, an unrelated non-parent, leaving her only visitation and partial custody rights.

This case commenced on March 25, 1985 when Dr. Burke, a former obstetrician-gynecologist, filed a petition seeking custody of Mrs. Pope's three children, Amanda Marie, Rebecca Ann and Abigail Leigh Pope.*fn1 On April 23, 1985, Mrs. Pope filed a petition for visitation and partial custody and on April 29, 1985, a response to Dr. Burke's original petition and a cross-petition for custody. The parties entered into stipulations, eventually adopted as Orders of court, on May 10, 1985 and July 2, 1985, which temporarily placed physical custody of the children with Dr. Burke and allowed Mrs. Pope visitation four hours a weekend on alternate Saturdays and Sundays. On December 12, 1985, Mrs. Pope filed a petition for special relief, pursuant to Pa.R.C.P. 1915.13, requesting modification of the temporary

[ 366 Pa. Super. Page 491]

    custody Order and requesting an emergency Order for Christmas visitation. On December 18, 1985, the Honorable Howard F. Reed, Jr., ordered that Mrs. Pope have special visitation time with her children on Christmas day, 1985. On January 15, 1986, Dr. Burke filed a response to the December 12, 1985 petition and a cross-petition for special relief pursuant to Pa.R.C.P. 1915.13. On January 27, 1986, Mrs. Pope filed an answer.

In all, five hearings were held before the Honorable John V. Diggins, on January 28, February 27, April 21, June 5 and October 1, 1986. On June 12, 1986, Mrs. Pope filed a motion, pursuant to Pa.R.C.P. 1915.13, requesting entry of a partial custody Order. On June 18, 1986, Judge Diggins entered a temporary Order for partial custody, decreeing that Mrs. Pope have partial custody of her children each weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday. On August 27, 1986, Mrs. Pope filed a petition for contempt of the partial custody Order. Following the October 1, 1986 hearing, Judge Diggins directed Dr. Burke to comply with the previous temporary Order for partial custody. Finally, after the submission of post-trial briefs, on February 10, 1987, Judge Diggins filed an Opinion and Order awarding sole physical custody to Dr. Burke with visitation and partial custody rights to Mrs. Pope.*fn2 It is this final Order from which Mrs. Pope timely appeals.

The relationship of the parties began in 1967 when Dr. Burke, then forty-nine years old and a friend of Mrs. Pope's uncle, met appellant who was only an eleven year old girl. In 1974, at age seventeen, appellant married and subsequently had three children. During the marriage, the Pope

[ 366 Pa. Super. Page 492]

    family frequently visited at the home of Dr. Burke, who was the mother's obstetrician-gynecologist. In 1978, after having physically and mentally abused the mother for sometime, the father abandoned his family while Mrs. Pope was pregnant with her third child, leaving her in a serious financial and emotional crises. Dr. Burke responded to this situation by inviting Mrs. Pope and her children to live with her until they could make suitable living arrangements for themselves. The family moved in with Dr. Burke in September, 1978 and she provided financial support for them for the next two years, including approximately two years of college tuition for Mrs. Pope.

The hearing court found that at the end of the first two years, Dr. Burke began to object to Mrs. Pope's social behavior involving her staying out late at night and occasionally overnight without notice with the result that the family moved to Mrs. Pope's parents' home. After approximately five weeks, Dr. Burke invited them back to her home so that the oldest daughter could finish the school year without interruption. Mrs. Pope accepted this offer and the family returned to the Burke home. However, a continuing deterioration of the relationship between Mrs. Pope and Dr. Burke occurred. This involved Dr. Burke's increasing her influence in the maintenance and care of the children and increasing her objections to alleged improprieties and moral failings of the mother, which eventually culminated in physical altercations between the women and the eventual expulsion by Dr. Burke of the mother from the Burke residence for one night. A few months after this incident, in April, 1982, Mrs. Pope left the Burke residence for the last time and went to New York, for one week, leaving no address or phone number where she could be reached. Just prior to her leaving and upon her return from New York, Mrs. Pope allegedly stated she would not return to the children nor did she want any part of them. The only access Dr. Burke had to the mother was by way of her therapist who arranged a meeting. From that time on the children have resided at the Burke residence away from the mother.

[ 366 Pa. Super. Page 493]

In the fall of 1982, Mrs. Pope was hospitalized for surgery but maintained frequent telephone contact with the children; however, the children were never brought to the hospital to see the mother. During 1983 and 1984, Mrs. Pope, while living with her parents, contends she was trying to raise sufficient funds for the family to get an apartment. During this period, the mother maintained weekly visits with the children as Dr. Burke would permit. In the summer of 1984, Mrs. Pope was hospitalized and returned to her parent's home. Near the end of 1984, following her recovery from another illness, Mrs. Pope contacted Dr. Burke and told her it was her intention to bring the children to her parents' home and an agreement resulted between the women that the children would be returned to Mrs. Pope at the end of the current school year in May, 1985. However, before this could take place, Dr. Burke commenced this action by filing a petition for custody on March 25, 1985. Dr. Burke did not deny Mrs. Pope visitation privileges until the spring of 1985 when Mrs. Pope tried to "forcibly" remove the children from Dr. Burke's babysitter's home. Subsequently, the lower court modified the existing stipulated visitation Order by entering a temporary partial custody Order, dated June 12, 1986, in favor of Mrs. Pope, which was in effect until the final custody Order, entered on February 10, 1987, from which this appeal arises.

Mrs. Pope argues on appeal that the hearing court abused its discretion and acted against the best interests of the children by concluding that Dr. Burke, a non-parent, met the heavy burden of persuasion that the parents' prima facie right to custody was forfeited and in determining that sole custody should reside in the non-parent. Further, the mother ...


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