Dile v. Dile
| Decision Date | 20 February 1981 |
| Parties | Martha Ann DILE v. Mary A. DILE, Appellant. |
| Court | Pennsylvania Superior Court |
Argued March 3, 1980.
Edwin R. Frownfelter, McConnellsburg, for appellant.
R Harry Bittle, Chambersburg, for appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
The instant case is an appeal taken by Mary A. Dile (hereinafter referred to as "mother") from the order of the lower court which awarded primary custody of the mother's two children, Keith Alan and Yudie L. Dile to Martha Ann Dile, the children's paternal grandmother (hereinafter referred to as "grandmother"). [1] In her brief, the mother makes three arguments: (1) that the court below erred when, pending the full custody hearing, it allowed the grandmother to retain custody of the children (2) that the court below erred in finding that the grandmother had shown sufficient reasons at the hearing to justify an award of custody to her; and (3) that the visitation order for the mother entered by the court was unduly restrictive regarding the children's contact with non-related adult males. We find appellant's first two arguments to be unpersuasive, however, we do find that the lower court awarded its restriction in the visitation order too broadly, and therefore we modify that order.
The mother first argues that the lower court erred when, pending the full custody hearing, it allowed the grandmother to retain custody of the two children. The mother would have us rule that a court may never grant a temporary custody order to a third party where a child's natural parents are available to take custody. We must reject this argument as being devoid of merit.
As the court below wrote in its opinion, of necessity, the children had to be somewhere during the pendency of the action. The temporary custody order was granted to the grandmother to maintain the status quo until a hearing could be held. The position advanced by the mother has no authority to support it, and we find it to be without merit.
The mother next argues that as a matter of law the evidence at the hearing failed to indicate "convincing reasons" why the best interest of the children would be served by awarding custody of the children to the grandmother. [2] In this Court's decision of In re: Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), we clarified the standard to be used in custody cases when the dispute is between a parent, or parents, and a third party, distinguishing it from the case of parent versus parent or parent(s) versus the state. In Hernandez, we said,
Id. at 286, 376 A.2d at 654 (footnote omitted).
Nevertheless, we believe the rule we adopt today reflects the important need for restraint in an area where the judiciary should proceed with the utmost caution. Thus where circumstances do not clearly indicate the appropriateness of awarding custody to a non-parent, we believe the less intrusive and hence the proper course is to award custody to the parent or parents. " Id. at 366, 416 A.2d at 514.
In Ellerbe, the Supreme Court awarded custody of a girl, aged twelve, to the maternal grandmother instead of to the child's natural father, thereby reversing this Court's decision in Hooks v. Ellerbe, 257 Pa.Super. 219, 390 A.2d 791 (1978). In so doing, the Supreme Court gave great weight to the fact that the child had lived with her grandmother from approximately age two until age twelve and "had developed stable and happy relationships with her grandmother, with neighborhood friends and, importantly, at school." Ellerbe v. Hooks, supra, 490 Pa. at 366, 416 A.2d at 515. The Supreme Court in Ellerbe made no specific reference to the conditions of the father's home in its opinion, but in our opinion it was noted that the father visited his child infrequently.
In Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979), this Court awarded custody of two boys ages fourteen and sixteen, to the boys' stepmother rather than to the boys' natural father, where the boys expressed fear of their father, characterizing him as too authoritarian, capable of inflicting severe physical punishment, and unconcerned about their needs. In Husack, we said,
Id. at ---, 417 A.2d at 235. (emphasis added)
In the case at bar, the hearing judge listed many factors in support of its decision to award custody of the children to the grandmother. At the time of the hearing in November of 1978, [3] the mother had started living with Herbert Kriner, a man with an extensive and varied criminal record, in October of 1978. Regarding Herbert Kriner, the hearing judge adduced that in the eight year period between March of 1967 and January of 1975, Kriner had been convicted six separate times on charges of burglary, larceny, receiving stolen goods, twice for armed robbery, assault and battery and other related offenses. During this eight year period, Kriner was twice adjudged to be in violation of the terms of his parole. At the time of the instant custody hearing in 1978, court records indicated that Kriner had been on parole since August 2, 1977, however, during that time he had been charged with unspecified offenses twice but both times the charges were dropped. Kriner testified at the custody hearing that both he and Mary Dile (the mother) had smoked marijuana but that both of them had stopped smoking marijuana at some unspecified time before this custody action was started. Herbert Kriner testified that he had learned a lesson as a result of his convictions and that he would "like to settle down and raise a family instead of going back and forth to jail." Despite this particular statement of Kriner, the court below in its opinion indicated its concern that Kriner would have an adverse influence upon the children.
The court also took into consideration a particular episode which occurred on October 26, 1978. On that date, an ambulance was called to the mother's home and the ambulance attendants found Herbert Kriner lying in the doorway frothing at the mouth and seeming to slip in and out of consciousness. He refused to let anyone get close to him or take him to the hospital emergency room. Subsequently, at the custody hearing, Kriner explained this incident by saying that he had "O.D.'d" when some unknown person put something into his alcoholic beverage.
The court below also considered the physical environment of the mother's house. At the time of the hearing, the mother was living in a rented house which had four bedrooms on the second floor and an additional room on the first floor which was being used as a bedroom. Seven people resided in this house: Mary Dile, Herbert Kriner, Isabelle Smith, who is Kriner's mother, and her son, [4] Kriner's sister, Kathy Kriner and her son, and Kriner's brother, John Kriner. The court disapproved of this arrangement, saying, The court considered this an important factor since the mother testified that while she was working, Isabelle Smith would care for Alan and Yudie. [5]
There was also some evidence introduced, via the testimony of the grandmother, that Alan and Yudie were not properly attended to. The grandmother testified that several times when she came to the mother's house to see the children, she found them sitting in wet diapers.
Additionally the court took note of the mother's lifestyle before she moved in with Herbert Kriner. Previously, the mother shared a house with another woman named Terry Hughes and the latter's two small children. The testimony indicated that Terry Hughes was an extremely poor housekeeper and that for as long as the mother lived with Terry Hughes the house was littered with clothes and dirty dishes. Of more...
To continue reading
Request your trial