Com. ex rel. Berman v. Berman
| Decision Date | 24 July 1981 |
| Citation | 432 A.2d 1066,289 Pa.Super. 91 |
| Parties | COMMONWEALTH ex rel. Howard A. BERMAN v. Barbara A. BERMAN, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Sept. 10, 1980.
Abraham J. Brem-Levy, Philadelphia, for appellant.
Howard Berman, Wilkes-Barre, for appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
This is a child custody case. We are all in agreement that the order of the lower court should be affirmed. Our only point of difference is regarding the standard of review that we should apply.
Judge HESTER says in his opinion that when the lower court has made a "penetrating and comprehensive inquiry into the facts," and has filed "a comprehensive opinion containing its findings and conclusions," its "decision will not be reversed absent an abuse of discretion." At 1068. Judge CAVANAUGH and I believe that statement to be too broad. [1]
If the issue is whether we should reverse the lower court's findings of fact, then indeed we must defer to the lower court, and reverse only where in making the findings the lower court has abused its discretion. This is so because the lower court saw the witnesses and is therefore much more able to appraise their credibility than we. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, "we are not bound by (the lower court's) inferences or deductions ... from the facts found." In re Custody of Hernandez, supra at 290, 376 A.2d at 656. Instead, "(w)e must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate." Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292 ---, 426 A.2d 555, 557 (1981) (emphasis added); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978). This is so because the scope of our review "in a child custody case is of the broadest type." Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1978); In re Custody of Myers, 242 Pa.Super 225, 363 A.2d 1242 (1976).
An "abuse of discretion" occurs when the lower court's "judgment ... is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will ...." Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). If we were bound to defer, not only to the lower court's findings of fact but also its conclusions of law, except in a case of "abuse of discretion," we should be unable to make the independent judgment we must make in child custody cases. Instead of being "of the broadest type," our scope of review would be very narrow.
It is true that some of the cases support the formulation in Judge HESTER's opinion. See, e. g., In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978) (in which I joined). It is nevertheless an inaccurate formulation, and we ought not to repeat it.
Of course, whenever we make an independent judgment, we take into careful account what the lower court has said. Certainly we will be influenced, and will often be persuaded, by the lower court's conclusion as to what is in the child's best interest. Child custody cases are extraordinarily difficult, and we have no special wisdom that enables us to know better than any one else what order "right and justice dictate." Commonwealth ex rel. Pierce v. Pierce, supra. We must therefore draw on the wisdom of the lower court. In the end, however, the decision must be ours; that is what review "of the broadest type" means. Commonwealth ex rel. Spriggs v. Carson, supra. We cannot should not avoid or diminish our responsibility by saying that we will reverse only for "abuse of discretion." In some cases, such as cases involving an order opening a judgment, or granting a new trial, or determining that a given weekly sum is fair support, such deference is appropriate. In child custody cases, it is not.
This much said, Judge CAVANAUGH and I join Judge HESTER's statement of the case, which we cannot improve upon; it properly defers to the lower court's appraisal of the witnesses, and then, taking the facts as found by the lower court, proceeds to consider the lower court's conclusion that it is in Danny's best interest to be with his father, even though it means that he and his sister will be separated. Judge HESTER does not say whether it is his independent judgment that the lower court's conclusion was correct; he would affirm the lower court's order because he finds no "abuse of discretion." Judge CAVANAUGH and I affirm because, on the basis of the evidence, it is our independent judgment that the lower court's order is in Danny's best interest. While here it does not matter which standard of review is applied, in another case it may. It is therefore important that we be clear what we are doing.
AFFIRMED.
In this child custody proceeding, the lower court awarded 13 year-old Melissa Berman to her mother and seven year-old Danny to his father. Only the mother has appealed and hence only the custody of Danny Berman is before this Court. Testimony was taken by the court below during four days in August, 1979 and consumes over 500 pages. The court filed a lengthy (36) pages and comprehensive opinion in support of its decision and we will defer largely to that opinion in now affirming.
The parties, Howard and Barbara Berman, were married on September 7, 1958 and had four children: David, 18, Sheri, 17, Melissa, and Danny. The Bermans resided together for some 19 years until August, 1977 when Mrs. Berman removed herself from the marital abode in Kingston, Luzerne County, and moved in with a friend, one Janet Roer, while the children stayed with Mr. Berman. This arrangement continued until January 16, 1978 when Mrs. Berman began occupying an apartment of her own in Kingston and took Melissa and Danny with her, while David and Sheri remained with their father. The instant habeas corpus action was later instituted by Mr. Berman, seeking custody of Melissa and Danny, and was apparently prompted by the imminent removal of the two children by Mrs. Berman to Atlanta, Georgia, where she was seeking employment. A restraining order issued and was served upon Mrs. Berman prohibiting removal of the children from the jurisdiction without further order of court. The court's final decision bearing on the custody of Melissa and Danny was handed down on the day following the conclusion of testimony.
As we have said, we affirm largely on the lengthy opinion of Judge Toole. The court exhaustively analyzed the voluminous record and considered in painstaking detail each of appellant's many contentions bearing on credibility of witnesses, particularly the expert witnesses; the weight of sufficiency of the evidence; relative fitness of the parents and living arrangements offered by each; the fitness of the surrogate parents; preferences of the children, and past misconduct by the parents. Further, the court discussed in some detail the many supporting witnesses offered by both sides regarding the fitness of each parent. Finally, the court laid particular emphasis on the best interests of the children, which is the paramount concern in any custody proceeding, and which embraces the child's "physical, emotional, intellectual, moral, and spiritual well-being." Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512, 517 (1980) (Flaherty, J. concurring). In short, the lower court has made a "penetrating and comprehensive inquiry into the facts" and has filed "a comprehensive opinion containing its findings and conclusions." Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781, 784 (1979). When the hearing judge complies with these requirements, his decision will not be reversed absent an abuse of discretion. Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978).
Appellant's principle contention on appeal is that the court abused its discretion in crediting the testimony of two of appellee's expert witnesses over appellant's own expert. The record reveals that, beginning with his parents' separation, Danny Berman began to undergo a series of personality changes and became withdrawn, tense, and irritable whereas he was formerly an outgoing, exuberant, and friendly little boy. In addition, Danny developed what was later diagnosed as encopresis, which is an involuntary soiling or discharge of feces having no organic basis.
In an attempt to seek professional guidance, Mrs. Berman made inquiries at the Childrens Service Center in Luzerne County, where psychological testing and family counseling were offered. There, Danny was examined and tested by Carter Nelson, a child psychologist, who is a doctoral candidate in his field. Mr. Nelson had previously spent 21/2 years in the Army as an adolescent psychologist and then served a year internship at the Childrens Service Center before joining the staff as a psychologist. In the present case, Mr. Nelson administered a battery of tests to Danny in an effort to discover the source and possible remedies for his problem. The testing included intellectual and functional screening, developmental and achievement tests as well as emotional evaluation. This testing and weekly counseling and therapy began in April, 1979 and continued up until the time of the hearings below. Based upon his extensive testing of Danny and his close relationship with the child, Mr. Nelson concluded that Danny was very angry and hostile as a result of his environment and broken home and that he is in vital need of his support systems in the Wilkes-Barre area his siblings, friends, grandparents, relatives, and Nelson himself. Nelson's goal was "to give (Danny) as much security and as much consistency as possible and any uprooting will lead to deeper feelings of insecurity." N.T. 48. He was...
To continue reading
Request your trial