*1 82 punishment
an and were thus violative increase Jeopardy We Fifth Amendment. Double of the Clause rejected such identical situation and reviewed almost 269, Foster, Pa.Super. v. Commonwealth claims in 271, 324 538, (1974), we noted: where consistently Pennsylvania main-
“The have courts judge in ‘(o)ral statements made tained that passing sentence, incorporated written in the but not judgment part judgment signed by him, of the are no ” (Citations omitted.) of sentence.’ Green, 555, See also pronouncement of sen- A.2d 392 The initial oral imposed” therefore not a “sentence tence in this case was appellant’s purposes jeopardy final of double argument must be denied.
Affirmed. Opinion.
SPAETH, J.,
in the result of this
concurs
Decided 1977. Feb. *2 Herrold, York, him Harrison Mar- John with Lewis C. appellant. kowitz, York, for *3 appel-
Raymond Smith, York, R. submitted a brief lee. WATKINS, JACOBS, Judge,
Before President and PRICE, HOFFMAN, CERCONE, VAN der VOORT SPAETH, JJ. Judge:
PRICE, appeal denying of This is an from an order appellant-mother. two minor We affirm. children Appellant appellee-father Febru- were married on ary 3, 1974, appellant In left her husband 1968. June Appellee granted minor was divorce and two children. 19, August sought Appellant subsequently on 1974. gain custody Upon petition, of the children. a writ corpus hearing on was held of habeas issued and a 1975, September 23, order, 15, its filed 1975. In October lower court held that children’s interests would awarding custody be best served to the father. reaching decision, the In its lower found that parents proper” “fit that ei- were the sense both noted, provide previously ther could for the children. As however, the court held the “best interests” of
85 retaining custody fa- in the be served children would following issue: “When Appellant now raises ther. fit, ‘tender parents to be does are determined both moth- require custody be awarded years’ doctrine nega- question in the Clearly we must answer er?” tive. any custo primary child consideration is to the best interest
dy proceeding determine Pa. Parikh, 449 ex Parikh v. rel. child. Commonwealth rel. Davi (1972); ex 105, 625 296 A.2d Commonwealth 599, 145 Davidyan, Pa.Super. dyan v. 230 327 (48 1895, 316, 2 citing 26, (1974) June P.L. Act of § child 92). of a “The interests and welfare best P.S. § spiri intellectual, physical, its moral and includes which being, considerations are subordi well and all other tual Holland-Mor ex rel. Holschuh v. nate.” Commonwealth 437, 380, (1972); itz, 444, also 448 Pa. 292 A.2d See Pruss, Pa.Super. ex Pruss v. rel. development of the recent 344 A.2d Our years” pervasiveness “tender doctrine demonstrates the Judge Spaeth above in Com maxims. As wrote Shuster, monwealth ex Grillo (1973), 312 A.2d years’ presumption ‘tender does not reflect or
“[t]he right ‘right’, derive from mother’s whether that pro- ‘prima It is characterized as facie’ or otherwise. only. party must have cedural One or other *4 judge proof. hearing burden If the equally that the the child would be finds interests of by custody granting custody litigant, served to either mother.” should be awarded to the child’s natural added) (emphasis 235-36,312 62. Id. at A.2d at Although parent impor of the is fitness in a tant factor determination of interest of a best finding child, parents fit not equally a that both are is equivalent finding to a the child that best interest of equally parent. would be served with either This court 86 held, previously
has ex rel. Horisk Horisk, Pa.Super. (1927), a father can be 90 400 that custody though parents to both found awarded even are proper,” long “fit as would be and as the child’s welfare disposition. also, best such See be served a Carlisle Pa.Super. (1973). Appeal, 181, 310 A fa- A.2d 280 prove to ther the mother is unfit in order need that custody. Janflone, obtain an award Janflone case, In the instant the lower that court held children’s interests best by awarding custody appellee. would be served primary question in this case is whether the lower in its erred determination that children’s wel- fare will best served an award of to the fa- analyze necessary issue, To it ther. is forth set of record. facts employed, earning Appellant gainfully $100 $90 per taxes. The children would live with week after grandparents grand- mother a new home on the and parents’ Appellant’s mother father 125 acre farm. appear eager join to have the their household. children grandparents appellant Since and both work day, babysitter employed for the would be to care younger Bryan child, Sean, who was three old hearing. Testimony that of the time demonstrated babysitter’s satisfactory. facilities are appel- portion deals with record
A substantial adven- and sexual physical and emotional disorders lant’s marriage. breakup tures, of the before after both men, one Appellant having 2 or relations with admitted left apartment paid the rent her after she of whom for however, has appellee. Appellant, she testified that Hurley stopped séeing testi- this man. Reverend Robert counselling appellant week fied he has been once a has year condition emotional about a improved. *5 testimony Mary Little, who
Appellee introduced during immedi- babysitter, and the children’s both was that, marriage up. ately She testified after the broke appellant frequently intoxi- prior separation, was they children, that when she delivered the cated changed bathed, diapers from were not nor were occasions, many child day the older one to next. On get supper he won’t asked her for because said “[h]e being (NT Appellant 60a). ever home.” denied [it] children, and testified intoxicated when she delivered good took them. that she care of separation, boys appellee with After the lived appellee parents completion his until of the house building. They was house then moved into the new appellee for some where alone took care of the children eight six to He remarried and lives months. has ample the time farmhouse of more than dimensions. At hearing, wife, Velma, aged of the his was second pregnant babysitter, with her first child. The former opportunity Mrs. Little testified that she has had adjusted appellee’s see how children have new wife “[t]hey just dearly and that her is the same love and she way (NT 58a). Moreover, with them.” she stated physical children, separa- condition of the after the every tion, completely “They different. had a bath night (NT 58a). every day.” and different clothes on opinion observations, From her it was Mrs. Little’s living promoted by the children’s welfare would be best appellant with their chil- father. Even admitted that the healthy developed satisfactorily. dren are The have current Mrs. Cutler does not work will be so the children day. her care stated loves the She that she children as her own and desires to have them in her home. appellant’s court below found that emotional dis- and, therefore, significant
turbances were resolved not a Likewise, factor in its past decision. as to marital misconduct, correctly that such facts are stated *6 significant degree only to the that welfare of affected, likely see, g., children is to e. be Commonwealth Carson, Pa.Super. Spriggs 9, ex v. 273 rel. 229 A.2d 323 (1974); Augustine Augustine, Pa.Super. 324 312, v. 229 (1974), A.2d a could 477 held such conclusion not be drawn from the record. appellee,
As to the lower court found that he has dem- ability for onstrated his concern the children his to provide a constructive environment their future growth. Moreover, judge favorably impressed by the current Mrs. Cutler’s attitude toward the children. appellate always give great
While an court must weight opinion judge to the of the trial who has had opportunity judge see and hear the witnesses and credibility, Pa.Super. Appeal, 80, Russo A. 237 346 (1975), bound, appeal, by 2d 355 we are not on deduc court; tions or inferences made the lower Common Pa.Super. wealth ex Miller, 269, rel. v. 248 213 Gifford (1968), independent judg 63 but must exercise an ment presented. based on evidence Commonwealth Pinder, ex Pa.Super. rel. v. 180, Johnson 217 269 A.2d however, 511 record, own Our review of the materially does disagree not with the lower court’s.
The lower court held in children’s best terests awarding ap would be served pellee, concluding family that “the unit of that has been justifies fered and can offered our conclusion stability factor of is [T]he decisive supports retaining . satisfactory a situation as opposed exchanging the same for one that un- is agree. known.” We all,
First of as pointed we have out on a number occasions, continued residence of children with one parent may, cases, a factor which in certain be con trolling. Society Commonwealth ex rel. Aid v. Children’s
89 Gard, 85, 362 Pa. 66 A.2d (1949); 300 Commonwealth ex rel. Zeedick, Zeedick 114, 245 A.2d (1968) (dissenting opinion by Hoffman, J.); Com- monwealth ex rel. Kraus v. Kraus, Pa.Super. 167, 138 A.2d (1958). Young children, particularly those age under two Bryan Sean, as was quickly form attachments if kindly. treated age Above the two, children become strongly attached to those who parental relationship tenderly stand and who have cared for them. “Bonds of affection have become so strong may only suddenly that to sunder them result unhappiness, physical injury. in the child’s in its but also Kraus, supra .” Commonwealth ex rel. Kraus quoting A.2d at ex *7 Society Gard, supra, Children’s Aid v. Pa. case, In
A.2d at 306. the instant all the available testi- mony adjusted, indicates that the be- children have attached, judge, come current Mrs. in Cutler. below, impressed by favorably the court her attitude amply toward the children. The record demonstrates young lady desire, that she is an articulate with a ex- pressed deed, young both her word to raise as Although own. we noted ex rel. Grillo Shuster, supra, young pregnant that a wife with her import, clearly first own child is a it factor of some question custody not determinative on the of where any should reside. To draw adverse inference in this clearly arbitrary. case would be year appellee provided primary
For over a Although home for these chidlren. this entitled would be weight appellee to little if par were otherwise unfit an ent, spite this is not the case. In of the fact that he day, appellee works provided has en a sound vironment for the children. The is not to record clear as however, salary, we have held that wealth relative is not important appears parent unless it that one is unable to provide adequately for See, g., the children. e. Common- Holland-Moritz, supra; Com
wealth ex rel. Holschuh v. Pa.Super. 58, Shipp, Shipp ex monwealth rel. is, however, intimation. There no such A.2d 906 Although decision, our are serious- necessary to we ly charges neglect by levelled of which were troubled against any appellant. may it be lack of at- While previous precipitated appellant’s emotion- tention was disorders, cause of al no indication as there is to primary problems. custody, appellant, If as awarded subjected parent constantly disciplinarian, be would normally stresses associated with and strains childrearing. type problem precisely which It is of led the lower court to conclude that an award exchange satisfactory appellant situation for would one that is unknown.
Where, record, review of we are satis after a fied that the court’s on lower decision was based all weighed testimony, against paramount and balanced children, question of the welfare its determination review, will not be on absent error of or disturbed law abuse of discretion. Commonwealth ex Pruss v. supra; supra. Pruss, Appeal, agree Carlisle Since we that the will best children’s welfare served this dis position, we can find no abuse of discretion.
The order the lower court is affirmed. dissenting opinion JACOBS, J., files a in which CER- *8 J., joins. CONE,
JACOBS, dissenting: Judge, my opinion in give Because the lower court failed to proper years consideration to in the tender doctrine reaching involving boys, its in this decision case two sev- years en old, three and and because the record not does sufficiently background capa- reveal the husband’s and childrearing, bilities for I would de- remand this case to custody granted termine if should not be to the mother. parent the court either Since below determined that proper children, fit for it re would be to care these in mains to consider which home the interests of the chil making
dren will be best advanced. In this determina polestar by tion the interest best of the children is the guided. re which this Court and the below A is in view decisions this Commonwealth evi continuing dences a effort inter serve a child’s best ests, by granting a child the most material advan tages placing story or a child in what conforms to best family, by determining parent book but in who has past demonstrated, likely or who is fu most provide, support, steady pres ture to the emotional unfaltering ence happy and the love which secures a childhood, granting custody parent. to that find To primary parent regularly the courts have turned to principles guidance. certain of law for is of these One . tender doctrine Commonwealth ex rel. Lucas Kreischer, v. 450 Pa.
(1973); Commonwealth ex rel. Grillo
Shuster,
226 Pa.
Super. 229,
(1973);
In the case bar, gives the record little indication that the was, likely husband or become, primary parent. gathered It can be from testimony of the ba- bysitter and the husband’s par- mother that marriage ties’ the mother responsibility had ultimate Although children. the mother was the one to leave the household and children at the breakdown of the mar- riage, when she physically ill emotionally dis- traught, she upon did so the advice of the husband’s at- torney, signing agreements up attorney drawn *9 unrepresented by counsel. she was when
and the husband comprehend the far surprising that she did It is not signature. In her reaching of her conduct or effects up relationship her this, kept her with spite she close virtually every seeing even children, weekend and them evenings during the week. certain arrangement the current children The husband’s mind, represent stability not, my the which with does the Three months the court credited it. before lower person hearing introduced a new into husband twenty remarrying. The latest is lives Mrs. Cutler only years boy, old, than the and at older older hearing obviously pregnant with her the time of the primary own first child. This Mrs. is Cutler now Considering caretaker of these children. the husband’s raising past, attitude in the toward child lower might given possibility have some consideration to the boys would not see much of their natural father mostly guidance young, but would under of this might unrelated wife whose chief interest well become baby. appearing her own Similar facts in Common Shuster, supra, wealth ex Grillo v. been identi have giving fied as cause for concern. Court Additionally, silent fi- record is on husband’s ability dependent nancial to take on a wife and another provide boys. Appel- child and continue to for the two great carry lant mother did a deal to her share family’s marriage, financial burdens and evi- produced support- dence was to show that she is still self ing provide boys. Although and can for the relative generally irrelevant, wealth is condi- strained economic tions new could breed resentment a new wife with a baby against children of that could be directed marriage. first weight gave the factor of court below decisive
stability equal, all the chil- and held where else they are, hus- e., dren should remain where i. with *10 support doctrine, would which The tender band. If applied. this Court opposite was not conclusion in properly court acted whether lower to determine stability outweigh these finding that considerations of being of their care young interest children’s years, must have it mother tender natural capa- questions regarding the husband’s the unanswered developed in the background bility considered record. proceedings consistent
I for further would remand opinion. with this
CERCONE, dissenting opinion. J., joins in this A.2d 826 Pennsylvania
COMMONWEALTH SYLVANUS, Appellant. Anthony Pennsylvania. Superior Court April 1976. Submitted Decided Nov. 1976.