176 Pa. Super. 186 | Pa. Super. Ct. | 1954
Lead Opinion
Opinion by
This appeal involves divorced parents, each desiring custody of two of their children. In such cases there usually is no solution to the problem; the court can only choose between unsatisfactory situations. So is it here.
The burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law: Com. ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 297, 101 A. 2d 452 (1953).
Any experienced trial judge, while conducting a hearing which involves the custody of children, is observing every act of the parties, not only to appraise the truth of their testimony, but also to evaluate their fitness to have custody of the children. An appellate court lacks this opportunity to pass upon the ability and character of the parties.
Judge Brbtherick is an experienced and able member of a trial court whose sympathy for children and interest in their welfare has often been demonstrated. His opinion sets forth the facts and the reasons for the court’s conclusion.
Dissenting Opinion
Dissenting Opinion by
Of course I agree that Judge Bretherick “is an experienced and able member of a trial court whose sympathy for children and interest in their welfare has often been demonstrated”. However, appeals to the Superior Court in proceedings for the custody of children are governed by the Act of July 11, 1917, P. L. 817, section 1, 12 PS 1874, which provides that we “shall consider the testimony and make such order upon the merits of the case, either in affirmance, reversal, or modification of the order appealed from, as to right and justice shall belong”. While this broad power of review does not empower us to nullify the fact-finding function of the hearing judge, Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A. 2d 350, it clearly indicates the intention of the legislature that we do more than merely place a rubber stamp of approval upon the action of the trial court. In the words of Judge (later President Judge) Baldrige in Commonwealth ex rel. Piper v. Edberg, 150 Pa. Superior Ct. 378, 28 A. 2d 460, “We have given great weight to what has been said by the learned court below, but the ultimate responsibility rests with us to determine from all the evidence who should have the care and custody of the child”. And see Commonwealth ex rel. Kreiling v. Kreiling, 156 Pa. Superior Ct. 526, 40 A. 2d 704.
The governing criterion in proceedings of this nature is the welfare of the children involved: Commonwealth ex rel. Haller v. Hanna, 168 Pa. Superior Ct. 217, 77 A. 2d 750; Commonwealth ex rel. Donie v. Ferree, 175 Pa. Superior Ct. 586, 106 A. 2d 681. We have
Dorothy A. Hubbell, appellant, is the mother of three little girls now aged respectively, six, four, and two years. These children have resided with their mother continuously since birth. There is not one scintilla of testimony in the record that the mother does not give them proper care. The fact that the mother associated with her present husband prior to divorcing the relator
The reasoning of the lower court is based largely upon the fact that the children must live in an apartment above a taproom operated by their mother’s present husband. But this court certainly cannot say that a mother should lose her children because she marries
Finally, relator is actually not seeking custody for himself. The children are to live in the home of relator’s mother and step-father in St. Petersburg, Florida. The bedrooms in this home are already occupied and the children would have to sleep with a Miss Bently. The relator’s mother is regularly employed. She and her husband are strangers to the children. No independent investigation Avas made of their home or of their financial ability. The conclusion of the loAver court is based in part upon statements made by relator’s mother not of record, and considered by the court in violation of our admonition in Commonwealth ex rel. Oncay v. Oncay, 153 Pa. Superior Ct. 569, 34 A. 2d 839; and Commonwealth ex rel. Balick v. Balick, 172 Pa. Superior Ct. 196, 92 A. 2d 703. This circumstance in itself requires a reversal.
According to tlie testimony, relator was at least equally guilty.