Com. ex rel. Newcomer v. King
| Decision Date | 25 June 1982 |
| Citation | 301 Pa.Super. 239,447 A.2d 630 |
| Parties | COMMONWEALTH ex rel. Michael Scott NEWCOMER v. Jeffrey KING, Ralph King, and Retha King. Appeal of Paula PETERSON. |
| Court | Pennsylvania Superior Court |
Argued March 15, 1982.
Joseph M. Kulik, Pittsburgh, for appellant.
George L. Hallal, Uniontown, for appellees.
Before SPAETH, JOHNSON and HOFFMAN, JJ.
This is an appeal from an order awarding custody of a seven year old boy, Michael Scott Newcomer, to his father, Appellee Jeffrey King. After making a complete review of the record, we find the record and opinion below to be inadequate, and therefore vacate the order and remand the case for further proceedings consistent with this opinion.
The child in question was born March 16, 1975 to Appellant Paula Peterson. Appellee Jeffrey King is the natural father and Ralph and Retha King the child's paternal grandparents, with whom Appellee Jeffrey King currently resides.
The record indicates that after leaving the hospital a few days after the birth of the child, Appellant and the child resided with Jeffrey King in the home of Ralph and Retha King. There was contradictory testimony offered concerning whether Appellant actually resided in the King home for more than a few days after returning from the hospital. [1] In October of 1976 Appellant took up residence in a mobile home located on the King property. The record also indicates that until the summer of 1977, Retha King often cared for the child. [2]
After a disagreement with Appellee Jeffrey King, Appellant moved in with her parents during the summer of 1977 and filed a habeas corpus action for custody of the child. She was then given temporary custody and moved, along with the child, to her sister's residence in Fayette County. In September of 1977, Appellant moved into a trailer park in Westmoreland County with the child and after reconciling with Appellee Jeffrey King, married [3] him on November 3, 1977. Appellant and her husband took up residence together with the child in the trailer. Soon afterward, Appellant took the child and left for Alabama, but returned a few days later, after again reconciling with Appellee Jeffrey King.
Other disputed testimony indicated that Appellee Jeffrey King had abused Appellant physically. Also, there was testimony from Appellant's sister that the child, who referred to Appellant by her first name, told Appellant's sister that Appellant was a bad person and that he had been told by his father that Appellant had tried to kill him. There was also disputed testimony regarding statements made by the child that his father did not require him to go to school, to church or take a bath.
Numerous witnesses testified for each of the parents concerning their good relationship with the child, that each parent loved and cared for the child and that the child was well-adjusted and appeared happy while with that parent.
On August 9, 1978, the second child of Appellant and Jeffrey King was born. On November 14, 1978, Appellant filed a petition to set a hearing on her original habeas corpus petition, after Appellees refused to return the child or allow Appellant to see the child, who had been residing at the King residence while Appellant cared for her ill second child. An order was issued the next day giving Jeffrey King temporary custody of the child.
The hearing was scheduled for December 20, 1978 on the habeas corpus petition. Jeffrey King absconded with the child to California prior to the hearing date and he was held in contempt for failing to appear before the court on December 20, 1978. Retha King then joined her son and grandson in California. She was found in contempt after a hearing on March 15, 1979 for failing to appear before the court, after Appellant had, on February 26, 1979, filed a Petition and Rule for Contempt.
The Appellant and Appellee Jeffrey King were divorced on August 13, 1979, but Appellant was unable to locate her husband and child, despite concerted efforts, until their return to Pennsylvania in August of 1980. Upon their return, Jeffrey King was placed under arrest.
The record further indicates that Appellant is living with her second husband and the second child born of Jeffrey King, as well as a child born of her second husband. Appellant's second husband is employed full-time and Appellant currently remains at the residence to care for the children.. Appellee Jeffrey King was unemployed at the time of the hearings, but had a solid work history. His father was employed and able to provide adequately for himself, Retha King, Jeffrey King and the child.
Hearings on the habeas corpus petition were held on September 24 and December 4, 1980 and on January 29, 1981. The court issued its opinion and order in the matter on May 21, 1981.
The primary concern in child custody cases is the best interests of the child, including his physical, intellectual, emotional and spiritual well-being. In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).
It is clear that our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). We are required to exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Oxenreider v. Oxenreider, supra; Commonwealth ex rel. Berman v. Berman, supra. While we cannot nullify or usurp the fact-finding function of the trial court, we are not bound by the deductions or inferences made by them. Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981); In re Davis, 288 Pa.Super. 453, 432 A.2d 600 (1981); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979). Therefore, if the issue is whether we should reverse the lower court's findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion. Commonwealth ex rel. Berman v. Berman, supra; In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, because of our requirement to exercise independent judgment, we will not adhere to an abuse of discretion standard in reviewing the determination of the lower court. See Robert H.H. v. May L.H., supra; Commonwealth ex rel. Berman v. Berman, supra; In re Arnold, id. 286 Pa.Super. at 176, 428 A.2d at 629 (HOFFMAN, J., concurring); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 457, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., concurring).
So as to facilitate our broad scope of review, we consistently emphasize that the lower court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); Garrity v. Garrity, supra. The lower court's opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which the judge reached his ultimate conclusion. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980); In re Custody of White, 270 Pa.Super.165, 411 A.2d 231 (1979); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). The lower court's opinion must also clearly demonstrate the necessity for placing custody with either the petitioner or respondent. Robert H.H. v. May L.H., supra.
In its opinion, the lower court determined that permanent custody should be given to Appellee Jeffrey King with liberal visitation granted to Appellant. After setting forth the facts leading up to the hearings on the habeas corpus action and making certain findings of fact, the court discussed its reasons for its determination. It concluded that both parents were capable of providing for the child, but that custody should remain with Jeffrey King because of the stable relationship developed between father and son, as in the best interests of the child.
The lower court correctly concluded that, in a case where both parents are equally fit to have custody, the fact that a stable, long-continued and happy relationship has developed between the child and one parent may be of critical importance in the formation of an appropriate custody decree. Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980); Commonwealth ex rel. Cutler v. Cutler, supra.
However, as stated in Commonwealth ex rel. E.H.T. v. R.E.T., id. 285 Pa.Super. at 456-57, 427 A.2d at 1376:
Although one's violation of a court order is certainly not controlling in resolving a custody dispute, there is absolutely nothing improper about considering such a violation in the evaluation of each party's parental attributes.
When a party in bad faith, removes a child from another jurisdiction in order to circumvent an adverse custody order of a court in that jurisdiction, our courts have held that such evasion of the law, if proven, should be an important factor when Pennsylvania courts consider the custody dispute. Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal, 195 Pa.Super. 104, 169 A.2d 307 (1961). The instant case raises the same troublesome issue. In resorting to self-help remedies, [appellant] acted in a manner inconsistent with the orderly and impartial resolution of disputes concerning the custody of minors. In ascertaining who would best serve the welfare of the children, the lower court should consider [appellant's] disrespect for the legal process...
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