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MARTIN T. HUTCHINSON v. BARBARA ANN HUTCHINSON (10/28/88)

filed: October 28, 1988.

MARTIN T. HUTCHINSON, APPELLANT,
v.
BARBARA ANN HUTCHINSON



Appeal from the Order in the Court of Common Pleas of Venango County, Civil Division, No. A.D. 394, 1984

COUNSEL

James L. Moran, Erie, for appellant.

Ann H. Gamble, Titusville, for appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Tamilia

[ 379 Pa. Super. Page 248]

This appeal evolves from a custody dispute between appellant and appellee who are the parents of two young boys,

[ 379 Pa. Super. Page 249]

    ages eight and six. Pursuant to a separation agreement and subsequent court Order, appellant was the primary caretaker of the children with appellee having visitation as agreed upon by the parties with the minimum visitation schedule being alternate weekends and holidays. Due to appellant working the swing shift consisting of considerable evening and weekend hours, appellee spent every weekend and some evenings with the boys. This arrangement changed, however, with appellant's new work schedule and appellee's remarriage. Once appellant no longer had to work evening and weekend hours, he insisted upon visitation being limited to the minimum set forth in the agreement. Although appellant claims his insistence was due to his free time being the same as appellee's, this limiting of appellee's visitation coincided with appellee's remarriage. Appellant testified he was concerned about the children's welfare since he believed appellee did not supervise the children closely enough or discipline them properly.

Appellee petitioned the court for a change of custody which ultimately resulted in her receiving shared custody and a considerable increase in visitation over what she had been given under the prior Order. Appellant appeals from this new Order, raising two issues: 1) whether the trial court erred in modifying the custody Order when appellee failed to prove a substantial change in circumstances; and 2) whether modification was in the best interest of the children.

Although we have a broad scope of review in custody matters, we cannot replace the trial court's determination with our own independent determination. Only where the trial court commits a gross abuse of discretion will we interfere with its decision. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). After thoroughly reviewing the record we find no reason to interfere with the trial court's Order.

Appellant claims there has not been a substantial change in circumstances which would warrant reconsideration of the prior custody Order. The law in Pennsylvania

[ 379 Pa. Super. Page 250]

    has changed, however, under Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), and changed circumstances are no longer required for a court to review custody Orders. "[W]e hold that a petition for modification of a partial custody to shared custody order requires the court to inquire into the best interest of the child regardless of whether a ...


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