Com. ex rel. Davis v. Davis

• Decision Date: 03 August 1979
• Citation: 408 A.2d 849,268 Pa.Super. 401
• Parties: COMMONWEALTH of Pennsylvania ex rel. Richard N. DAVIS, Jr. v. Laura L. DAVIS, Appellant.
• Court: Pennsylvania Superior Court

408 A.2d 849

268 Pa.Super. 401

COMMONWEALTH of Pennsylvania ex rel. Richard N. DAVIS, Jr. v. Laura L. DAVIS, Appellant.

Superior Court of Pennsylvania.

August 3, 1979

Argued June 4, 1979.

William T. Luskus, Media, for appellant.

Charles F. Mayer, Media, for appellee.

Before PRICE DOWLING and GATES, JJ.

GATES, Judge:

This is an appeal from orders of the court below granting custody of two minor children to their father. The mother filed this appeal. For the reasons set forth herein we vacate the orders of the lower court and remand for a new hearing and a full opinion by the hearing judge.

The parties to this appeal separated on October 26, 1976. The natural mother had custody of the minor children, subject to visitation rights on the part of the father until the orders appealed from were entered in the court below.

The record discloses that the trial judge conducted hearings on November 18 and December 14 of 1977. On the latter date the hearing judge entered an order granting custody to the father appellee here. The mother was given visitation rights. On December 23, 1977 the hearing judge entered an additional order clarifying one aspect of the December 14, 1977 order with respect to the summer temporary custody rights of the mother. This appeal followed.

The hearing judge completed his term of office as a judge of the Court of Common Pleas of Delaware County on December 31, 1977. Consequently the opinion in support of the hearing judge's orders was written by another Common Pleas Judge of Delaware County.

Although the scope of review in this court in child custody cases is of the broadest type, our power is not without limitations. In the past we have taken great care to stress:

". . . this broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear . . ." Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350 353 (1953).

This fundamental limitation on the power of a reviewing court was articulated in Commonwealth ex rel. Rainford v Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972):

". . . we have recognized that the trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses. Because we are not in such a position, we have recognized that a trial judge's determination of custody should be accorded great weight . . . Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge. . . ."

It should first be noted that the hearing judge did not file an opinion in support of the custody orders. Rather a common pleas judge, not the hearing judge, wrote the lower court's...