Galloway v. Galloway

• Decision Date: 09 December 1958
• Citation: 146 A.2d 383,188 Pa.Super. 313
• Parties: Mildred M. GALLOWAY, now Mildred M. lnsogna, Appellant, v. Harold GALLOWAY and Jeanne P. Galloway, his wife.
• Court: Pennsylvania Superior Court

Page 383

146 A.2d 383

188 Pa.Super. 313

Mildred M. GALLOWAY, now Mildred M. lnsogna, Appellant, v. Harold GALLOWAY and Jeanne P. Galloway, his wife.

Superior Court of Pennsylvania.

Dec. 9, 1958.

Zeno Fritz, Pittsburgh, Edward J. Blatt. Ridgway, for appellant.

Paul B. Greiner, Ridgway, for appellee.

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

WATKINS, Judge.

This is an appeal by Mildred M. Insogna, the appellant, mother of the minors, from the order of the Court of Common Pleas of Elk County, awarding custody of the minor children, Regina Galloway, age 7, and James Galloway, age 5, to the appellees, Harold Galloway the paternal uncle, and Jeanne P. Galloway, his wife.

Charles Galloway and Mildred Galloway, now Insogna, were married December 10, 1939. Regina was born December 6, 1950 and James, April 4, 1952. Two older children, Robert was born on May 19, 1941 and Dolores on August 20, 1942. It was a stormy marriage and they separated in 1954. The two youngest children were left with the appellees and have been with them ever since. The older children were left with another paternal uncle and presently Dolores is living with her mother and Robert with his father.

In July, 1955 the parents were divorced and the same month, July 21, 1955, the appellant married Domenic Insogna. A child, Patricia Ann, was born of this marriage and at the time of the hearing was fifteen months old. Charles Galloway has not remarried.

The appellant had lived at 6707 Hamilton Avenue, Pittsburgh, Pennsylvania. Shortly before the hearing the Insognas rented and moved into a house having six rooms, three of which are bedrooms and a bath, located at 1108 South Braddock Avenue, Swissdale, Pennsylvania. Appellant, her husband, their infant daughter and her daughter occupy the premises. The appellees own their own home on South Street, a residential area in Ridgway, Pennsylvania. The house has eight rooms, four of which are bedrooms and a bath. This is occupied by the appellees, the minors and two children of the appellees, age 16 and 12. Domenic Insogna is employed by the Firestone Tire and Rubber Company and his average weekly earnings are $95 per week. Harold Galloway is a safety inspector for the Pennsylvania Mfgr's. Association.

The record discloses that the Galloway family have an excellent reputation in the community; and the court below found that the children were well and lovingly cared for and are well adjusted in the existing family situation. 'It is basic and fundamental that the paramount consideration is the welfare of the children and that all other considerations, including the rights of parents, are subordinate to the children's physical, intellectual, moral, apiritual and emotional well being.' Commonwealth ex rel. McNamee v. Jackson, 1957, 183 Pa.Super. 522, 525, 132 A.2d 396, 398. 'While natural parents have the primary right to a child's custody, there is no fixed or 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. Kraus v. Kraus, 1958, 185 Pa.Super. 167, 170, 138 A.2d 225, 226. See also: Commonwealth ex rel. Bradley v. Bradley, Pa.Super.1958, 146 A.2d 147.

It may be presumed to be for the best interest of the child to be in the custody of its parents, and particularly the mother in the case of young children. Compelling reason must appear before a natural parent will be deprived of custody. Commonwealth ex rel. Keenan v. Thomas, 1943, 151 Pa.Super. 131, 30 A.2d 246. See also: Cochran Appeal, Pa., 145 A.2d 857, in which the Supreme Court reversed the decision of this Court, in 1958, 187 Pa.Super. 79, 142 A.2d 499. In that case, however, the contest was between natural parents and an institution. We are, here, discussing a contest between the one parent, the mother, and foster parents, where the children have been in the custody of the foster parents for four years, from the time one was four years old and the other two years old. They had become a part of the Galloway household and it is the only home they remember. The father of the child testified in favor of continuing custody in his brother's family.

The court below properly placed great emphasis on the failure of the appellant's training and control of the older boy Robert, who was in her custody since the separation. It found that he 'became involved in the juvenile court, was beyond the control of his mother, did not get along with his stepfather, Domenic Insogna, and left his mother and went to live with his father early in 1957 and has lived with him ever since.' Robert Galloway, who was sixteen at the time of the hearing, testified to the domestic turmoil and violence that he witnessed in the Insogna home. Most certainly the experience of Robert in the custody of his mother had considerable weight in the determination of what was best for the welfare of the youngest children. Domenic Insogna corroborated Robert concerning the turmoil and violence in the home. He testified that his wife struck him, cut him and scratched him and that while they were fighting the furniture was upset.

We are inclined to give great weight to the findings of President Judge Trambley, of the Court below, who had the opportunity of seeing and hearing the parties and the witnesses and is in a much better position to pass upon their ability and character than we are in examining the cold record. Commonwealth ex rel. Knouse v. Knouse, 1941, 146 Pa.Super. 396, 22 A.2d 618.

We believe the...