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JUDITH BARCLAY v. DAVID BARCLAY (11/05/87)

filed: November 5, 1987.

JUDITH BARCLAY, APPELLANT,
v.
DAVID BARCLAY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 84-11107.

COUNSEL

David I. Grunfeld, Philadelphia, for appellant.

Thomas A. Winkelspecht, Philadelphia, for appellee.

Cavanaugh, Rowley and Montemuro, JJ.

Author: Montemuro

[ 367 Pa. Super. Page 530]

This appeal concerns the custody of a three-year-old girl, L.L.B.

Appellant, J.B., and appellee, D.B., were married in August of 1982. L.L.B. was born on May 6, 1984. On August 9, 1984, appellant filed a complaint in divorce. Following a final separation of the parties in December of 1984, appellant and L.L.B. resided with appellant's mother. Appellee visited L.L.B. during 1985, and on July 15, 1985, appellee filed a petition seeking partial custody of the child. On November 26, 1985, an agreed order granting custody of L.L.B. to appellant and partial custody rights to appellee was entered into by the parties and approved by the Court of Common Pleas of Philadelphia.

On May 28, 1986, appellant filed a petition to modify the custody order. In this petition, appellant asserted that a substantial change in circumstances had occurred following

[ 367 Pa. Super. Page 531]

    the entry of the agreed custody order of November 26, 1985. Specifically, appellant alleged that her suspicion that her husband, appellee herein, was not the natural father of L.L.B. had been confirmed, and that "one P.B. has been shown to be the natural father by blood test." Further, appellant asserted that it would be in the best interests of L.L.B. to have no time with appellee because "the child is more familiar with P.B." than with the appellee and appellant "is engaged to marry P.B."*fn1 Following a hearing on the matter, the trial court denied appellant's petition to modify the custody order of November 26, 1985, finding that appellant had failed to establish a substantial change in circumstances since the entry of that order. The appellant argues on appeal that the trial court erred in its conclusion that the facts presented before the court were not sufficient to constitute a substantial change in circumstances, thus warranting a reconsideration of the existing custody order.

Our supreme court has recently enunciated the appropriate standard of review in custody matters. In Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), the Court reiterated the long standing principle that a broad or searching appellate review is proper, and indeed, necessary in custody matters to insure that the focus of the trial court was on the best interests of the child. Id., 515 Pa. at 147, 527 A.2d at 529. Thus, as the Court stated in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977), "an appellate court is not bound by deductions and inferences made by a trial court from the facts found, . . . nor must a reviewing court accept a finding which has no competent evidence to support it." However, this broad scope of appellate review in custody matters does

[ 367 Pa. Super. Page 532]

    not allow us to usurp the fact-finding function of the trial court. In Lombardo, the court cited with approval our language in Commonwealth ex rel. Rainford v. Cirillo, 222 ...


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