Commonwealth ex rel. Kraus v. Kraus

• Decision Date: 21 January 1958
• Docket Number: 2715
• Citation: 185 Pa.Super. 167,138 A.2d 225
• Parties: COMMONWEALTH of Pennsylvania v. James R. KRAUS.
• Court: Pennsylvania Superior Court

138 A.2d 225

185 Pa.Super. 167

COMMONWEALTH of Pennsylvania v. James R. KRAUS.

No. 2715

Superior Court of Pennsylvania

January 21, 1958

Argued November 19, 1957

Appeals, Nos. 171 and 172, April T., 1957, from order of County Court of Allegheny County, No. 2249 of 1955 and No 2295 of 1952, in cases of Commonwealth of Pennsylvania ex rel. Audrey E. Kraus v. James R. Kraus and Commonwealth ex rel. Susan Kraus Brooks v. James R. Kraus. Order reversed.

Habeas corpus for custody of minor child. Before GUFFEY, J.

Order entered awarding custody to natural mother of child. Natural father and second wife, respectively, appealed.

The order of the lower court is reversed at the cost of appellant James R. Kraus, and it is ordered and decreed that James Leroy Kraus remain in the custody of Audrey E. Kraus.

Frank C. Rayburn, for father, appellant.

J Milton Klein, with him Morris B. Greenberg, for second wife, appellant.

Gustav W. Wilde, with him J. Milton Klein, for mother appellee.

Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.

OPINION

WRIGHT, J.

We are here concerned with a three-way contest involving the custody of James Leroy Kraus, referred to hereinafter as Leroy, born February 18, 1952. The County Court of Allegheny County acquired jurisdiction because of a prior support order including Leroy's maintenance. Act of March 19, 1915, P.L. 5, 17 P.S. 653. And see Commonwealth ex rel. Mann v. Mann, 181 Pa.Super. 438, 124 A.2d 432. The parties to the proceeding are (1) Susan Kraus Brooks, referred to hereinafter as Susan, the first wife of James R. Kraus, and Leroy's natural mother; (2) James R. Kraus, referred to hereinafter as James, the natural father of Leroy, and presently married to a third wife; (3) Audrey E. Kraus, referred to hereinafter as Audrey, the second wife of James R. Kraus, and the mother of his other two children, who has cared for Leroy for almost five years. After a six-day hearing an order was entered awarding custody of Leroy to Susan. We granted supersedeas pending the instant appeals of James and Audrey.

James and Susan were married on April 21, 1951, and separated in the summer of 1952. At No. C-2295 of 1952, Susan instituted a proceeding for support, which was thereafter continued indefinitely. Leroy was temporarily cared for by the mother of James. Susan and James were divorced on May 7, 1953. James married Audrey on May 9, 1953, and Leroy thereafter lived with them. James and Audrey subsequently had two children, Kristine, born February 17, 1954, and Kim born May 30, 1955. A separation agreement was executed by James and Audrey on August 1, 1956, which agreement provided, inter alia, that Audrey should have "full and complete legal custody" of Leroy, Kristine, and Kim. On December 28, 1956, Audrey and James were divorced. On February 2, 1957, James married his third and present wife. On March 25, 1957, at No. C-2249 of 1955, the County Court of Allegheny County ordered James to pay Audrey support for the three children in the amount of $20.00 per week, whereupon James petitioned for Leroy's custody. Susan thereupon petitioned for custody in No. C-2295 of 1952. The two proceedings were consolidated for hearing and determination.

While natural parents have the primary right to a child's custody, there is no fixed and invariable rule that a natural parent, even though of good moral character, is entitled to custody under all circumstances. Each case must finally rest on and be determined by its own facts: Commonwealth ex rel. Shroad v. Smith, 180 Pa.Super. 445, 119 A.2d 620. The right of natural parents is not absolute and must yield to the best interests and welfare of the child: Commonwealth ex rel. Logsdon v. Logsdon, 156 Pa.Super. 85, 39 A.2d 461. A parent's prima facie right to custody may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else: Commonwealth ex rel. Burke v. Birch, 169 Pa.Super. 537, 83 A.2d 426. The custody of a child is not a property right, Commonwealth ex rel. Donie v. Ferree, 175 Pa.Super. 586, 106 A.2d 681, and the matter must be viewed with relation to the happiness, training, development, and moral, physical and spiritual well-being of the child: Oelberman Adoption Case, 167 Pa.Super. 407, 74 A.2d 790. The paramount consideration is at all times the welfare of the child, and all other considerations are subordinate: Commonwealth ex rel. Shamenek v. Allen, 179 Pa.Super. 169, 116 A.2d 336. See also Nauman's Adoption, 177 Pa.Super. 317, 110 A.2d 925; Commonwealth ex rel. McDonald v. McDonald, 183 Pa.Super. 411, 132 A.2d 710; Commonwealth ex rel. McNamee v. Jackson, 183 Pa.Super. 522, 132 A.2d 396.

We are fully in accord with the conclusion of the court below that custody should not be awarded to James. In the words of Judge GUFFEY: "At an age of 25 he has been married three times and has fathered three children whom he can neither support nor give the guidance that every child needs ... In view of his past life no Court could consider him a fit parent to raise a child". James concedes that Audrey is a good mother, and voluntarily relinquished to her the custody of all three of his children. The suitability of Audrey's home was clearly established by the testimony of a nurse on the staff of the Allegheny County Health Department, and by a number of other witnesses. James has completely failed to demonstrate that Leroy's welfare would best be served by countenancing a repudiation of the terms of the separation agreement.

Coming now to the issue as between Susan and Audrey, the court below attributed to Audrey "the responsibility for breaking up the marriage of Susan and James". On the contrary, the record shows that James and Audrey became acquainted after Susan and James had separated, and it was not until some three months later that James disclosed that he was a married man. The court below was also apparently impressed by the fact that Audrey and the children were crying during an interview with a court investigator, to which circumstance we attach no disqualifying significance whatsoever. Finally, the court below stressed the fact that Audrey is on public assistance and has no means to support her own two children. Assuming arguendo, which does not clearly appear in the record, that Susan presently has greater financial resources, that circumstance is not controlling in determining custody: Commonwealth ex rel. George v. George, 167 Pa.Super. 563, 76 A.2d 459. While we are not empowered to nullify the fact finding function of the hearing judge, Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 95 A.2d 350, we are charged with the responsibility of seeing to it that the relevant legal principles are correctly applied. It is on this basis that we have concluded that the court below erred, and that Leroy should remain in Audrey's custody.

In his opinion the hearing judge makes the following statement "At the outset of the trial the Court stated that the natural mother is entitled to custody, unless it can be shown she is not fit to have the child. The main issue involved in the trial is whether Susan has for some reason become a mother unfit and unworthy of her child. Only if this is answered in the affirmative is it necessary to consider the respective qualifications of the other claimants". He then reasoned that, since he could not conclude that Susan had abandoned the child, he must recognize "the presumption in law that a mother unless proven unfit is always entitled to the custody of her children, especially the firstborn". It is important to note that we are not here dealing with an adoption case in which abandonment must be found to obviate the necessity of consent. In the words of President Judge RHODES in Oelberman Adoption Case, supra, 167 Pa.Super. 407, 74 A.2d 790, "it does not follow that because a decree of adoption has been refused the custody of the child must be given to relatrix". See also Petition of Sulewski, 113 Pa.Super. 301, 173 A. 747. The court below relied upon Commonwealth ex rel. Buckner v. Barr, 173 Pa.Super. 124, 95 A.2d 355, affirmed 376 Pa. 9, 101 A.2d 621, which can be readily distinguished. In that case the natural mother persisted over a period of four...