Commonwealth Ex Rel. Montgomery v. Montgomery
442 A.2d 791
Pa. Super. Ct.
1982
Check Treatment

*2 SPAETH, Before WATKINS, HESTER JJ. HESTER, Judge: before the court is

Presently appellant’s appeal from the order1 of the 12, lower court dated 1980, November wherein granted lower court general custody of the parties’ three minor sons to appellee father. “ORDER NOW, November, day 1980, ORDERED, AND this 12th of it is

ADJUDGED AND DECREED that of the three minor chil- hereby granted father, dren shall and is Ray favor their natural Montgomery, rights A. with reasonable visitation in the natural petition as mother heretofore established. The of the natural mother hereby for dismissed. Judge’ Terputac, Thomas J. pages in excess of 500 consists record herein The which we are asked a situation evidencing testimony clearly cases; which of two is, that to decide in numerous to resolve general custody be awarded should caring parents loving, children. minor parties’ hearings: October separate six lower court convened March February November 29, 1980, following August and Order dated 25-page Opinion issued a which the court the three minor granting custody November herein. It is natural children to their been taken. appeal the instant this Order from We affirm. in a concern paramount that our undisputed

It is *3 best what is in the is to determine custody proceeding child his or considering involved of the child interest and welfare emotional, well-being. and intellectual physical her spiritual, Parikh, 105, Parikh v. 449 Pa. 296 ex rel. Commonwealth Shaffer, 27, v. 396 A.2d (1972); Sipe Pa.Super. 263 A.2d 625 Lewis, 235, v. 406 A.2d 781 Lewis Pa.Super. 267 (1979); 1359 134, 555 Wenger, v. 267 406 A.2d (1979); Wenger Pa.Super. Arnold, 171, 428 Lynn In re Jennifer Pa.Super. 286 (1979); parents, between the child’s (1981). A.2d 627 In a contest the affirmative burden of mother and father bear both to them would be in the that an award of custody proving Hernandez, re of Custody the child. In 249 best interests of (1977). 274, 376 A.2d 648 Pa.Super. Lewis, stated in Lewis v. supra, aptly

As this court 783-4: hearing, Following the record was closed. the March 1980

2. however, order, July of issued its Before the lower court change petitioned alleging of circumstances suffi- the court By July justify reopening Order dated to the of the record. cient granted petition court interviewed the was and the lower Thereafter, by August children in camera 1980. three minor pursuant August the court to still another order dated yet petition, reopened another time and took another the record testimony on additional 328 to

In order ensure the best interests of the child served, will be will appellate court a com- engage Scarlett, review of record. Scarlett v. prehensive 257 468, 390 A.2d 1331 Pa.Super. (1978); re Custody 242 363 A.2d 1242 Myers, Pa.Super. (1976). Thus, will fact, while it defer to lower court’s findings court will not be appellate bound deductions facts, inferences made the lower from court those but will an make based its independent judgment own Shaffer, careful review of the Sipe evidence. v. supra, Scarlett, v. supra. Scarlett In conducting this review the court will look to all appellate whether the pertinent facts and of the contesting circumstances have been explored fully developed. Sipe Shaffer, v. See supra; Gunter, v. Gunter 361 Pa.Super. A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating comprehensive and if inquiry, necessary, develop record itself. See Commonwealth ex rel. Cox, Cox v. Pa.Super. (1978). A.2d 1082 After fulfilling this ensure responsibility complete record, the court comprehensive must file a con- opinion its taining findings conclusions. See Valentino v. Valentino, 259 Pa.Super. (1978); Gunter Gunter, supra. with the Only benefit of a full record opinion and full can court appellate hope to fulfill its its responsibility conducting own careful review. Va- v. Valentino, supra. lentino Additionally, and that the lower court assuming *4 discharged its fully responsibilities make a penetrating and and if comprehensive inquiry, necessary, develop the itself, then, record and then and file a only comprehensive opinion its containing findings fact and conclusions of law, adopt we thereafter the reasoning Judge Price in T., contained Commonwealth ex rel. E. H. E. T. v. R. 285 444, 448, Pa.Super. (1981), 427 A.2d 1372 that: “. . . since trial is judge best position to attitudes, evaluate sincerity, credibility, and demeanor involved, of the witnesses his ‘determination of custody

329 Commonwealth ex rel. great weight.’ should be accorded 591, 597-98, Cirillo, 222 296 A.2d Pa.Super. Rainford v. omitted). See, v. (1972) (citation e.g., Trefsgar 841 (1973); Common Pa.Super. 261 Trefsgar, Zeedick, 213 Pa. Super. wealth ex rel. Zeedick Thus, we are not (1968). although duty A.2d 665 245 determination, we will the trial court’s accept bound to discretion, it, abuse of if the judge defer to absent an facts, investigated investigation thoroughly record, complete comprehensive documented a and a is contained in written findings analysis judge’s Cirillo, 222 ex rel. Rainford v. opinion. Commonwealth 597-98, 296 A.2d at 841. Commonwealth See Pa.Super. Schwarz, 95, 380 Pa.Super. ex rel. Schwarz v. A.2d (1977). ...” in a review of engaged comprehensive We have this have made our own independent voluminous record and judgment based our careful review of the evidence. In this we are satisfied that all relevant facts discharging duty, explored and circumstances have been fully developed and where the lower court. parties necessary, by With these as our we have responsibilities guideposts, concluded that the lower court has made a penetrating and comprehensive develop in order to inquiry complete record. thereof, In the lower court has filed a support detailed of 25 with Opinion consisting pages, replete numerous Find- Fact, ings law, a detailed review of the and the applicable behind its reasoning Conclusions. parties record discloses that were married on and that three sons were born of 1967; Mark,

marriage; Douglas, on December on July 1971; 1973. At the time of the Greg, April first hearing, was old and the years appellee, built a three-bedroom home at 41 Willow Drive, in Washington, where resided Pennsylvania, they with their three minor children until their together first time, separation August of 1978. At that the appellant removed himself and the with his stayed nearby *5 for

parents one week. At the end of approximately that one week he returned the to their separation, mother at the boys Willow Drive For the next five property. approximately weeks eight upon whose recollection (depending one ac- cepts), boys three resided at the Willow Drive property with while the at appellant appellee stayed his parents’ However, during home. this period appellee had a three-week vacation from work and therefor was able to spend the of his time during day with his majority sons while parents’ at his home. sleeping 13, 1978,

On moved back appellee into the marital residence after allegedly finding appellant’s present (Alex Duda) husband in the at living room four o’clockthat same morning. parties resided Willow Drive (al- as though wife) not husband and until living April of at which appellant time the moved ato two-bedroom town- house like known structure as Hill in Carriage McMurray, herself; the Pennsylvania. by She moved three boys stayed in the Willow Drive home with their the appellee. The parties were divorced dated April Decree Previous thereto, the wrote a letter appellant (Exhibit 1-A) 26, 1979, dated which February provided: “Ray, I promise to give you custody if don’t you contest this divorce. (Signed) Gay” (R. 78a).

The appellant married Alex Duda on June 1979. The appellee Mary married on Montgomery July 1979. Fol- lowing appellee’s remarriage, Mary Montgomery her two minor sons a previous marriage moved into the Willow Drive with residence and his three sons.

From that in time until point the issuance of a Visitation Order, dated October the appellant did not see her basis, three sons on a regular although she did speak to them often by telephone. July filed the instant Petition Writ of Corpus. for Habeas As previously noted, there six were hearings pursuant thereto, the first one being held October on 1979. Following the hearing October the court issued the visitation order referred to above. *6 before voluminous record reviewed the carefully

We have of the lower court finding ultimate with the and concur us three of the balance, parties’ interests the best that, in the general if remain they be served will best minor sons herein. appellee the of their custody are fit that both parents lower court with the We agree of, for, custody and have general to care proper persons and father appellee mother and Both appellant three boys. their commitment to present and their love have demonstrated children; for see example, appellant’s welfare of their contained at love and commitment statements of her sincere 58a; statement 42-43a, appellee’s see similarly, 45a and R. at R. 236a. the lower court’s find- record supports

Additionally, favor factors which did not there were numerous ings that those for the reason that in favor of either party an award included: equal. They were substantially factors In this each of regard, of the (a) preferences boys: interviews and at no time two in camera the three had boys strong preference; of them express did any : Based the court parties of both (b) The residences testi- caseworker Agency and Youth Social ordered Children mony; and (appellant of each family financial status

(c) The was Montgomery) proper- and Mary and appellee Alex Duda comparable; to be determined ly new respective parties’ attitude (d) positive A demon- Montgomery and Mary Both Alex Duda spouses: for the three boys to care willingness a very positive strated was awarded to their custody general in event that spouse; Both nuclear activities: with the

(e) boys’ Involvement with the children as is available as much time spend families extra-curricular activi- with the children’s and are involved baseball, etc.; basketball, swimming, ties such as Prior to the onset of domestic influence: (f) Religious 1978-79, took the appellant repeatedly boys problems church; thereafter while in the three, all (his two) five her Mary Montgomery, activities; attended church services and church-related Each (g) Other witnesses: had numerous testify witnesses their behalf. their Notwithstanding biases, each with spoke sincerity obvious witnesses forthrightness. an apparent sum, concur the lower court we with that both parties n their are present fit and have spouses proper boys, and both sets have created spouses presently equally an and favorable environment to positive raise *7 boys. time required

We feel at this to comment on the letter which wrote during parties’ divorce litigation in February promised which of the to boys if he would not appellee contest the divorce. We feel that this letter in and of itself no probative value and thus has no bearing on ultimate decision of what is in the best interest and welfare of children at time. this However, we are that note months compelled many lapsed between the letter February appellant’s action (actually or, inaction) least, to obtain of her children have them on extended visits. We feel overnight that this of time is lapse significant.

We are also most impressed by commitment which the wife, present and his Mary Montgomery, have made Mark, towards individual maturation of Douglas and Greg—emotionally, scholastically, morally and socially. addition, it from record that appears Mary Montgom- two ery’s marriage, sons her Russell prior and Christo- pher, get along Mark, well and form a family unit with Douglas and Greg. “They get along well. basically fairly They like fight any brothers do. There is more no fighting between the two sets of brothers than there is between all of 246a). them.” (R.

“Q. What are your about feelings Ray’s three sons? A. I them love much .... very I have returned that A. I love them and think they (R. 259a). love.” also convinced the court that the social

Mary Montgomery she and centered around Ray enjoy primarily life which activities. boys’ have touched those factors which we we Previously call” in either of the favoring feel have been “too close to However, there are certain factors which convince parties. the best interests of the three minor will best boys us that if remains with their father. general custody be served their include: They have, fact, That the resided

(a) continuously with their father in a stable and loving relationship during very period; stressful total commitment to his sons

(b) Appellee’s during that (1978-79), stressful and he trying period whereby clearly the welfare and of his well-being three sons far above placed own; his whereas the record does not demonstrate the same of commitment on the degree part appellant; finally, academic,

(c) emotional, At the moral present, boys’ welfare is better served and more physical highly pro- appellee. moted an award favor of the *8 close and very In this difficult case for all con- cerned, we, record, carefully reviewing after the entire discharging responsibilities detailed, after our as previously concur with the lower court that the best interests of the three minor children will better be parties’ served by award- of them ing general to their herein.

Order affirmed.

SPAETH, J., files a concurring opinion.

SPAETH, Judge, concurring: I concur conclusion that the order of the majority’s lower court should be affirmed. I am unable to join

334 because of

majority’s opinion premise its announced that whenever the lower court has thoroughly investigated the comprehensive facts and we “will opinion, filed defer to [determination], absent an abuse discretion.” At it[s] statement, 793-794. an inaccurate This is and is contrary settled that we are bound to follow. authority

It is of course true that we not nullify must the lower fact-finding court’s function. we must Thus defer to its resolution of issues But from the as credibility. facts found court by inferences, the lower we must draw our own and then decide for ourselves what in the is best interests of the children. As stated Common- our Court in Supreme wealth ex Pierce, rel. Pierce v. 292, 296, Pa. 493 426 A.2d (1981): 557

Our of review in a matter scope is of the broadest and we type, are not bound or by deductions the trial court. Commonwealth ex rel. inferences made Carson, Spriggs v. 290, 295, 470 Pa. 368 A.2d 637 (1977). exercise We must an independent judgment based on the evidence and make such on the order merits as Farabelli, dictate. Adoption right justice 460 Pa. 423, 433, 851 (1975); Snellgrose Adoption 333 A.2d Case, 432 Pa. A.2d 599 (1968). Accord, v. rel. Albright Fetters, Commonwealth ex 491 Pa. And see Commonwealth ex rel. (1980). 421 A.2d 157 Berman, Berman v. Ct. Pa.Superior 432 A.2d 1066 (1981). undertaken such a review of

Having here, I record have the order lower concluded that court should be affirmed. The decisive factor for me is that since the parties’ the children separation, have lived with their father. “There can question stability be no important Hernandez, re Custody child’s welfare.” 249 Pa.Supe- rior Ct. 376 A.2d 660 (1977). Stability is not all id.; see ex Commonwealth rel. Grimes important, Yack, Ct. Pa.Superior (1981). But here, *9 many where so other are equal, factors I find it decisive.