*1 ” natural of the part development facts . . . 148,160 Pa. 134 at A. 602 at 607. Since testimony officer regarding knowledge appellant’s prior criminal was not activity offered as substantive proof crime for which the tried, I being would hold , it was admitted and affirm the properly judgment sentence.
CERCONE, J., joins in this dissenting opinion.
COMMONWEALTH ex rel. Joanne M. SCHALL SCHALL, Appellant.
Dennis B. f
Superior Court o Pennsylvania. Sept. Submitted 1976. Decided Dec. 1977. *2 Himmelreich, Easton, for appellant. Donald S. Salazar, appellee. Northampton, J. Salvador JACOBS, WATKINS, Judge, President Before HOFFMAN, CERCONE, PRICE, VAN der VOORT SPAETH, JJ.
SPAETH, Judge: court’s order This is an a father from the lower appeal by a to his mother. awarding boy four old custody mother, a to obtain corpus petition filed habeas appellee, 28, 1975, 31, August of the child on 1975. On July initial temporary custody an was held and hearing the mother. rights by awarded with visitation 3, 1975, A second and an was held on December argu- order was entered maintaining quo. Legal status 31, 1976, ment was had on and on March February the lower granted corpus for habeas petition awarded followed. appeal to the mother. This
In a child custody
hearing judge’s inquiry
case the
should be
and his decision
comprehensive
searching,
supported by
full discussion of the evidence. Gunter v.
Gunter,
382,
240 Pa.Super.
(1976);
with these remand. Where, however, the hearing judge complied Id. with we have held that we consistently these requirements, findings. defer to his Tobias v. Tobias, 168, (1977) (“absent an discretion, decision will not be reversed”); abuse Clouse, (1976) the Interest of A.2d 780 (“we findings”); Appeal, must defer to his Clair 219 Pa.Su- (“must 726 (1971) always 281 A.2d per. give great rel. opinion”); Commonwealth ex Dober- weight [judge’s] Doberstein, 201 Pa.Super. (1963) stein v. in [judge’s] discretion”); should remain (“surely Dinsmore, ex rel. Dinsmore v. wealth (1966) (“should give A.2d 66 to the great weight . . . is in a much better hearing judge [who] . . . .”). position
In the case the President present hearing judge, PALMER, complied Clinton Budd with the re Judge that we have for he has filed a substan- quirements imposed, and discusses the evi tial in which he summarizes opinion reasons for his decision to carefully explains dence of the child to mother.1 award in the hearing judge’s our confidence factual Despite an appropriate we are nevertheless unable make findings, In his opinion hearing judge review of his decree. relied “tender After he years” presumption. explicitly in a plurality wrote his opinion, Supreme opinion that in view of the of concept equality indicated recognize dissenting opinion disagrees 1. We that with the hear- record, carefully ing judge’s findings. Having examined the how- ever, persuaded hearing judge’s findings we are not that are not unnecessary supported by the record. We consider it to elaborate beyond upon observing appellate that if an this conclusion reject hearing judge’s findings, obliga- it chooses to a has a double demonstrate, record, first, by why It reference to the tion: should second, judge’s findings supported, why are not its substituted by dissenting findings supported, the record. The under- demonstrations, but takes neither of these rather substitutes its. own credibility, appraisal failing por- while to discuss of the witnesses’ testimony. tions of the
265 retained no vitality, presumption sexes, years” the “tender which to allocate the device procedural a only even as Mr. Justice NIX said: Thus of proof. burden matters as sensitive deciding of wary be should Courts of “presumptions.” the invocation custody by questions into the inquire out courts should Instead, we believe that all the parties involved relationships circumstances based the facts of solely upon a determination and reach then before the Court. the case Carson, Pa. v. 470 Spriggs (1977). 368 A.2d lead, we now held that the “tender have this
Following v. “eliminated.” McGowan has been presumption years” 1306, 1308 n. 1 44 n. 374 A.2d McGowan, (1977). law, in fairness both to the father in the change this
Given we must remand so mother, not to mention light consider whether judge may the hearing that would be different. his decision See and McGowan Spriggs (1977). 378 A.2d Lough Charney, the result of this considera- he will explain We expect which the parties after opinion, tion a by filing supplemental before us. argument further may request with this opin- consistent proceedings remanded Case ion. VOORT, J., dissenting opinion. files
VAN der
J.,
affirm.
JACOBS,
dissents and would
VOORT, Judge, dissenting:
VAN der
*4
an
father from an Order of
by
appellant
an appeal
This is
of his four
old son to the
custody
awarding
instituted in the lower
The action was
mother..
in
a habeas
filing
corpus
the mother’s action
by
31,
on
1975. On
custody
July
to obtain
petition
28, 1975,
petition
the initial
August
was awarded to the
custody
and temporary
heard
the mother. A second full hearing
with visitation rights by
3, 1975, and an
was held on December
order was entered
the status
maintaining
quo. Legal argument was presented
31,
1976,
and on March
February
on
lower court
corpus
for habeas
petition
awarded
granted
custody
This
appeal by
to the mother.
father followed.
matters,
of review is
scope
our
custody
quite broad and
while we do not
function of the
nullify
fact-finding
trial
court,
not
by findings
we are not bound
supported by
evidence. Commonwealth ex rel. Ulmer v.
competent
Ul
mer,
144,
(1972). case, court, essence,
In the instant the lower in found both to be parents possessed relatively equal fitness and ability However, to have the of their minor son. court, of then recognition precedent (i. e., existent Shuster, wealth ex rel. Grillo v. supra.), placed reliance upon the “tender doctrine or years” presumption, which held that in cases where the best interests of the child would be served well with either equally by placement parent, the custody should be awarded to the natural mother. Since the date of action, Court, the lower court’s our Supreme aby plurality severely criticized tender years presumption. Carson, Commonwealth ex rel. 470 Pa. Spriggs (1977). case, A.2d 635 In our review of this I see no need for an extended discussion or analysis of that application however, doctrine as the record amply supports conten- tion of the appellant that the best interests of the child would be served to his granting father. *5 the best interests of the of what In our determination significant factors following quite we consider the child child; the care and (2) the the of (1) age review: in our the contesting par- the child toward exhibited affection the (4) occupation the parties; ties; the moral conduct (3) “caretakers”; (5) the resi- for provisions parties See, v. Au- example, Augustine the parties. dences of (1974). Custody gustine, basis of these factors as they be determined corpus hearing. of the habeas at the time exist Shipp, ex rel. Shipp wealth case, the in the instant the hearing the time of
(1966). At mother must be appellee to applicable circumstances less favorable for the four old considerably evaluated those of the father. interests than child’s shows that the child resided with both record hearing The mother appellee departed when July, until parents in home, in a trailer park Northampton, the family from her son with his father. At the time leaving Pennsylvania, her and on two occasions family prior her from departure traveled to another locale to date, the had appellee to that friend. At the she admit- hearing, time with a male spend a three with the same male day period ted to having spent After the resided separation, appellee friend in a motel. bedroom with her sister and apartment in her sister’s one was, time, absent without leave brother, who at the her Thereafter, in Corps. September, from the Marine of that and into a mobile apartment moved out appellee where she resided for three only home with her sister weeks. October, 1975, moved, time appellee again this home, residence, mobile where she took this time up another individual, disclosed, male friend. This it was has a with her a conviction for involving statutory rape. criminal record December, 1975, hearing, time of the it was also At the in which her appellee that the mobile home disclosed have resided was for sale and would paramour appellee, if it was sold. at premises to vacate basis, on a full-time employed time working 46*/2hours for 5*/2 each week. days She testified custody, that if awarded she planned place her son in a care her day during working hours, local center from 7:15 a. *6 m.; however, m. she she p. to 5:15 testified had not complet- care, such did not arrangements ed and know what this cost. testified prior would Witnesses that to her departure home, the family from her had often her appellee let son outdoors in play very inadequate clothing. Also, she failed home, to maintain conditions in sanitary her including leav- waste on the floors. ing pet these leave me with
All of factors considerable doubt the about the fitness of mother appellee to provide the care for her son or to insure proper that his best interests be served. her she abandoning family, had, Since at the time of the hearing, nomadic life adopted style, while associat- herself with ing individuals whose propriety and moral char- acter were Her questionable. plans for daily care her indefinite, son while she is were working and while not not reprehensible, certainly assured to be beneficial to him at this early important stage and in his childhood. father, appellant at all times relevant to these pro- resided in the same trailer home ceedings, from which his wife had He is departed. steadily employed, working 52V2 week on a five day hours week per per schedule with weekends off. the hours father During is working, he his son in the care of the paternal leaves child’s grandpar- ents, who have a residence provide farm and care, constant attention, and love to the family child while his father is at work. No evidence in the suggests record factors insta- or bility questionable on relationships part similar to or with those equating exemplified by the mother.
In of all above, light whole, record as a conclude the interests of the child would best be served to the by awarding father. The record of habeas corpus indicates that with his father, will be in a more stable and wholesome atmosphere than that which could be if the projected mother were awarded custody. record is complete unquestionably opinion, my to an award of mandates overwhelmingly serve the interests of the father in order best from decision dissent respectfully
child. I view of the obvious inherent in delays this case in remand I of record which believe the facts such a procedure as child’s soon regain custody that the father require clearly possible. court. of the lower reverse the order I would 380A.2d482 Stathas, Appellants, and Isabell Nicholas STATHAS *7 Wade, George Anna Cumber- Newton WADE Ruth ESTATE Co., County Bank & Trust Executors of the land National George Newton Estate Wade.
Superior Pennsylvania. Sept. 1976.
Argued DecidedDec. 1977.