Com. ex rel. Rainford v. Cirillo
| Decision Date | 16 November 1972 |
| Citation | 222 Pa.Super. 591,296 A.2d 838 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Edna RAINFORD, Appellant, v. Salvatore CIRILLO and Josephine Cirillo. Appeal of Edna RAINFORD. |
| Court | Pennsylvania Superior Court |
C. George Milner, Philadelphia, for appellant.
Edward J. Morris, Philadelphia, for appellees.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.
This is an appeal from the Order of the Family Division of the Court of Common Pleas of Philadelphia County denying appellant's writ of habeas corpus seeking custody of two children presently living with appellees, Salvatore Cirillo, their natural father, and Julia Cirillo, the paternal grandmother.
The two children, Salvatore, age six, and Melody, age five, were born as a result of a meretricious relationship which began in 1965 between appellant, Edna Rainford and appellee, Salvatore Cirillo, both of whom were married at the time. By her previous marriage, appellant had three children whom she gave up for adoption. The relationship between the parties ended in January of 1970, when appellant left the natural father and the two children and moved to New York.
In September of 1970 appellant, a white woman, married Osborne C. Rainford, a black man. They presently reside in a three bedroom home in the Bronx, New York. Mr. Rainford, a divorce , is a building contractor and earns approximately fourteen thousand dollars a year.
Since the departure of the appellant, the children have been in the custody of their natural father, residing in South Philadelphia at the six room home of the paternal grandparents, Julia Cirillo, age fifty-one, and her husband, Salvatore. The father is manager of a tire department at a local automobile dealership and earns approximately $8600.00 per year. The grandmother cooks and cares for the children while the father works during the day. The father's work schedule is such that he can spend considerable time with his children. Both appellees expressed deep affection for the children and a strong desire that custody be awarded to them for the welfare of the children. Mrs. Cirillo stated that her family is a very close one and that the children have become more open since living in her home.
Appellant stated that she left Philadelphia in January of 1970 solely for the purpose of obtaining immediate medical care in New York, care which she stated she was financially unable to obtain in Philadelphia. This was contradicted by the fact that she never sought medical care in New York until March of that year, and that appellee provided Blue Cross and Blue Shield for her which appellant had used during two previous hospitalizations. In addition, Mr. Rainford testified that appellant's stated reason for leaving Philadelphia was that she 'was disgusted in the way she was living'.
Appellant testified that when she left Philadelphia it was with the knowledge and approval of appellee who drove her to the bus station. This is flatly contradicted by appellee who stated that he came home for lunch and found the children left alone in the house. He stated that this trip to New York was without his knowledge and without any explanation. This testimony was substantially corroborated by the paternal grandmother. The trial judge accepted the testimony of appellee and his witnesses in regard to this matter.
Appellant had taken frequent trips to New York previously, 'whenever she needed money'. These trips were normally for weekends, one for over a week, and another for a month. Her activity on these trips was unexplained.
After leaving Philadelphia, appellant never attempted to visit the children until the institution of these proceedings on December 29, 1970. She stated that she called the father several times but was rebuffed. She also stated that she purchased Christmas presents for the children but made no effort to deliver them because she 'figured' the children would never get them. The trial judge, in evaluating the credibility of these assertions, disbelieved appellant. Appellee stated that appellant's only communications with him were for the purpose of obtaining money.
The medical treatment received by appellant in New York consisted of three weeks of hospitalization for gynecological problems and weakness in March, a therapeutic abortion in August, and an emergency D. and C. in November, all in 1970. The abortion was performed after a June diagnosis of pregnancy which indicated an eight to ten week period of gestation, placing conception sometime in April. Appellant, however, testified that she became pregnant before leaving Mr. Cirillo. She then hesitated in naming the putative father until she could 'check up the days in the record for how many months and what happened'.
Her various visits to New York and her stay in New York after leaving Philadelphia are clouded with mystery. At one point she stated that she was financed by a girl friend, worked as a cook, and as a dancer, and that she was on welfare but never received any payments. While she testified that she lived with a friend prior to her marriage to Mr. Rainford, she, at one point, admitted, and other evidence indicated, that she resided with Mr. Rainford for an appreciable period of time prior to their marriage.
Miss Diane Cirillo, cousin of appellee, testified in regard to the condition of the home and the children while the parties lived together. She testified that she often visited their home and that appellant 'hollered a lot, and everything she said to them was in a high tone of voice,' that the children appeared nervous, were afraid of appellant, seemed closer to the father, and, that after appellant left, seemed much happier and less fearful. She also testified that the house was generally in a state of disorder. This testimony was substantially corroborated by the paternal grandmother who observed that, at the time the children first came to live with her, they seemed nervous and withdrawn, but that after a while, they became more cheerful and...
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