Appeal from the Order entered in the Court of Common Pleas of Indiana County, Civil Division, No. 136 C.D. 1987
David J. Flowers, Indiana, for appellant.
Wayne A. Kablack, Indiana, for appellee.
Tamilia, Montgomery and Hoffman, JJ. Montgomery, J., concurs in the result.
[ 377 Pa. Super. Page 393]
Appellant and appellee were married on September 3, 1977. Prior to the marriage, appellee had been living with appellant for two years when she informed appellant she was pregnant with his child. The child, Jessica Seger, was born on January 16, 1978, with appellant being listed as the natural father on the birth records. When Jessica was approximately four years old, appellee told appellant that Jessica was not his daughter but this contention was not confirmed at that time. Appellant raised and supported Jessica until appellee moved to Florida in November, 1986, taking Jessica with her. Appellant filed a complaint for custody with a hearing on said complaint being held on February 27, 1987, at which time the court heard testimony regarding appellant's status to the child. Temporary custody was awarded to appellant with the court ordering the parties and Jessica to undergo blood tests to determine conclusively whether or not appellant was the child's father. Upon receiving the results of the tests which determined appellant was not Jessica's biological father, the court entered an Order on June 29, 1987 granting custody to appellee with "liberal visitation rights to be agreed upon by the parties" to appellant even though the court found he had no legal right to visit the child. The court granted the visitation because it found appellant and the child had "great affection" for each other. The custody and visitation Order proved to be very unworkable, obviously due to the lack of
[ 377 Pa. Super. Page 394]
specificity as to how the parties should schedule visitation. The result was that appellant had no visits with Jessica from the time of the Order until January 1988 when appellant filed his petition for contempt against appellee for failure to comply with the visitation Order. Appellee apparently thwarted all efforts of appellant to visit with the child and her attitude toward complying with the custody and visitation Order is curtly stated in her brief where, referring to the grant of liberal visitation rights to be agreed upon by the parties, she states, "What the Court meant by this was that Charles Seger would have the right to visit with the child when the mother decided it was appropriate. The Court did not order any specific visitation rights for Charles Seger." Appellee's brief at p. 5.
A hearing on the contempt petition was held on March 7, 1988 with appellant, his counsel and appellee's counsel appearing. Following an in-chambers discussion with both attorneys, and without taking any testimony, the Court vacated its June 29, 1987 Order which awarded liberal visitation to appellant and entered a new Order finding appellant "has no legal standing to visit with the child in view of the fact that he is not the biological father of said child." Appellant appeals from this Order.
Before we address appellant's issues, we will discuss appellee's contention that no issues have been properly preserved for our review. Appellee claims appellant was required to file exceptions to the court's Order or raise the issues he raises on appeal to the trial court first, otherwise, he waives those issues. Appellee's argument is wrong; the concept of waiver is inappropriate in a child custody/visitation case. In re Custody of Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980). The purpose of a custody hearing is to determine the best interests of the child. We cannot allow the procedural aspects of custody matters to take precedence over the welfare of the child, therefore, a custody Order is a final, appealable Order, reviewable by this Court without any intervening procedures, such as exceptions, being necessary. Id. The scope of review of an appellate
[ 377 Pa. Super. Page 395]
court in a custody case is of the broadest type. It is limited only to the extent that an appellate court may not nullify the fact finding function of the hearing judge. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Thus, appellant's appeal to this Court is entirely proper.
The first issue raised by appellant is whether the trial court had the authority to modify the June 29, 1987 custody/visitation Order without a petition for modification and testimony supporting "changed circumstances." In a recent decision by this Court, we stated the appropriate way for a custody/visitation Order to be modified is through a petition for modification. Steele v. Steele, 376 Pa. Super. 174, 545 A.2d 376 (1988). A trial court cannot permanently modify a visitation Order without the petition to modify being submitted by one of the parties. Id. Thus, on that basis alone, the trial court Order of March ...