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YVONNE MARTIN v. JOSEPH MARTIN (04/24/89)

submitted: April 24, 1989.

YVONNE MARTIN, APPELLANT,
v.
JOSEPH MARTIN, APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Armstrong County, No. 1981-2140-Civil.

COUNSEL

Frank A. Wolfe, Ford City, for appellant.

Robert Petrosky, Kittanning, for appellee.

Wieand, McEwen and Watkins, JJ.

Author: Wieand

[ 386 Pa. Super. Page 329]

This is an appeal from the denial of a mother's petition to modify a custody order which had awarded custody of two daughters to their father. The trial court determined that

[ 386 Pa. Super. Page 330]

    there had not been a material change in circumstances following the original custody order and, therefore, declined to reconsider the best interests of the children. We reverse and remand for additional proceedings.

On March 1, 1988, after a full hearing, the Court of Common Pleas of Armstrong County entered an order awarding custody of Brandy Ann Martin, age fourteen, and Dawn Lynn Martin, age twelve, to their father, Joseph Martin. Less than three months later, the children's mother, Yvonne Martin, filed a petition to modify the custody order. The court held a hearing, at which the children's mother and maternal grandmother testified, and at which the children were again interviewed in camera. At the close of the mother's evidence, father moved for dismissal of the petition on the ground that mother had failed to show a substantial change in circumstances adversely affecting the children. The court granted father's motion for dismissal on the basis of Superior Court decisions holding that a party must prove a substantial change in circumstances to warrant a reexamination of the children's best interests. See: Snarski v. Krincek, 372 Pa. Super. 58, 538 A.2d 1348 (1988); Constant A. v. Paul C., 344 Pa. Super. 49, 496 A.2d 1 (1985); Burr v. Morgart, 339 Pa. Super. 341, 488 A.2d 1155 (1985). On appeal, mother contends that the trial court abused its discretion when it declined to re-examine the best interests of the children.

In Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), the Supreme Court eliminated the requirement that the petitioning party prove a substantial change in circumstances in order to modify an order placing primary physical custody in one parent to an order of shared custody by both parents. The Court's decision was based on 23 Pa.S.C. § 5310, which provides as follows:

Any order for the custody of the child of a marriage entered by a court in this Commonwealth or any state may, subject to the jurisdictional requirements set forth in 42 Pa.C.S. §§ 5342 (relating to purposes and construction

[ 386 Pa. Super. Page 331]

    of subchapter) and 5344 (relating to jurisdiction), be modified at any time to an order of shared custody ...


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