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SALLY O. MUMMA v. ROBERT M. MUMMA (11/29/88)

filed: November 29, 1988.

SALLY O. MUMMA, NOW SALLY O. SONGSTER, APPELLEE,
v.
ROBERT M. MUMMA, II, APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 85-SU-01975-03.

COUNSEL

Richard B. Wickersham, Harrisburg, for appellant.

Donald Byrne Hoyt, York, for appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Wieand

[ 380 Pa. Super. Page 20]

Sally O. Songster, appellee, and Robert M. Mumma, II, appellant, are the parents of Robert Mumma, III, who was born May 12, 1982 and who is known by his parents as "Bo." The trial court awarded primary custody of Bo to his mother during the school year, with alternating weekends to be spent with his father. During the summer, however, Bo was to divide his weeks on an alternating basis between both parents. His father has appealed from the trial court's order. After careful review, we affirm.

The parties to this action were married in 1977 and separated in April, 1983. Pursuant to the terms of a property settlement agreement, the parents shared custody of their son, who moved from parent to parent on a weekly basis. On July 10, 1985, the appellant-father filed a petition asking the court to confirm joint custody. This was followed, on July 25, 1986, by the mother-appellee's petition for custody. Following a pre-hearing conference before a court-appointed master, a temporary order was entered awarding primary custody to the mother-appellee. Thereafter, the court held extensive hearings which produced the order from which the father appealed. He has raised two issues for appellate review as follows:

I. DOES THE COURT ORDER OF JULY 2, 1987 REPRESENT THE BEST INTERESTS OF THE CHILD BO IN THE DIVISION OF PARENTAL TIME BETWEEN THE MOTHER AND FATHER?

II. IS IT PROPER FOR COUNSEL FOR THE MOTHER TO SERVE IN SUCH CAPACITY, WHILE AT THE

[ 380 Pa. Super. Page 21]

SAME TIME HOLDING A POSITION AS PRE-HEARING OFFICER OR MASTER IN THE YORK COUNTY COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION.

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court's inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is "manifestly unreasonable as shown by the evidence of record . . ." will an appellate court interfere with the trial court's determination. Murphey v. Hatala, 350 Pa. Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court's ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-598, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987).

In support of his contention that the trial court abused its discretion, appellant argues that (1) in the absence of a showing of changed circumstances, the court should have based its order on the shared custody agreement of the parties; and (2) the court's order contravened the policy against destroying the relationship between parent and child. Appellee ...


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