Gerber v. Gerber

• Decision Date: 18 January 1985
• Citation: 337 Pa.Super. 580,487 A.2d 413
• Parties: James E. GERBER, Appellant, v. Marie P. GERBER.
• Court: Pennsylvania Superior Court

Page 413

487 A.2d 413

337 Pa.Super. 580

James E. GERBER, Appellant, v. Marie P. GERBER.

Superior Court of Pennsylvania.

Argued Sept. 20, 1984.

Filed Jan. 18, 1985.

Daryl J. Gerber, Palmyra, for appellant.

Philip H. Feather, Annville, for appellee.

Before WICKERSHAM, WIEAND and HESTER, JJ.

WICKERSHAM, Judge:

James E. Gerber appeals from the order of the Court of Common Pleas of Lebanon County granting primary custody of his son, James E. Gerber, Jr., to his wife, Marie P. Gerber.

James and Marie Gerber were married on May 20, 1978. It was Marie's second marriage and James' first. Their child, James, Jr., the subject of this custody dispute, was born on August 1, 1979. In November of 1982, Marie left the marital home, taking young James [hereinafter "Jimmy"] with her.

James filed a divorce complaint on January 7, 1983, seeking custody of the couple's son in count III thereof. Following a custody hearing in the lower court on November 22, 1983, the Honorable G. Thomas Gates issued an order granting custody of the child to Marie, appellee herein. This timely appeal followed.

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ...[.] Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ...

....

(W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge's determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge. (Citation omitted; emphasis added.).

[Commonwealth ex rel. Spriggs v. Carson] 470 Pa. at 296, 368 A.2d at 637 [1977].

Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support the trial court's factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court's factual findings. Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); and, thus, represent a gross abuse of discretion, Carson.

Commonwealth ex rel. Robinson v. Robinson, --- Pa. ---, ---, 478 A.2d 800, 806 (1984) (emphasis in original).

With this standard in mind, we must thoroughly review the record to determine whether the lower court abused its discretion in granting custody of Jimmy to appellee.

In cases involving custody of a minor child, the controlling question and paramount concern of the court is the best interests of the child; all other considerations are deemed subordinate to the child's physical, intellectual, moral, and spiritual well-being. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983). Instantly, the lower court found that Jimmy's best interests would best be served by allowing him to remain with his mother. Appellant avers that this decision was against the weight of the testimony. We disagree.

The lower court considered a number of factors and compared and contrasted the relative merits of each parent. The lower court found that both James and Marie are "loving and capable parents." Lower ct. op. at 3. This is thoroughly supported by the record.

Further, it is clear that both parties are in relatively the same financial condition and are both able to adequately provide for the child. Lower ct. op. at 4. Appellant argues, however, that he is better able to manage his resources, as indicated by the fact that he has paid all of the couple's joint obligations as well as child support, whereas appellee has failed to pay a number of her own bills. Brief for Appellant at 12-13. While there is some evidence to this effect in the record, we do not believe that this establishes that appellant's financial condition is obviously superior to appellee's. Furthermore, appellant does not argue, nor is there any evidence in the record, that appellee's financial condition has had, or will have in the future, an adverse effect on Jimmy. Thus we find that both parties are financially able to provide for the child and any differences in their respective financial conditions are irrelevant to the instant custody determination. See Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979) (Unless the income of one party is so inadequate as to preclude raising the child in a decent manner, the matter of relative incomes is irrelevant).

Marie Gerber resides with her son in a second floor apartment in Lebanon. It consists of a living room, kitchen, bedroom, and bathroom. The home study report indicates that the apartment is spacious and comfortably furnished. The lower court found these living facilities to be adequate. Lower ct. op. at 4. At the time of the hearing, appellant was living in his parent's home, which the court found to be adequate. Appellant expresses concern with the court's reference to the temporariness of this arrangement. That is, the court noted that appellant testified that his living arrangements would change when he married his girlfriend, Donna. The court stated that "we have no idea of what living arrangements will be available for the child when Mr. Gerber is financially stable and married to his present girlfriend." Lower ct. op. at 4-5. We do not believe, however, that the court found this uncertainty to be important. Rather, it is clear that the court decided that both present living arrangements were adequate. Thus, we feel that this factor was not determinative of the outcome of this dispute.

The main points of contention between the parties seem to be which parent has been more involved in the child's upbringing and which of them will be more available to him on a day-to-day basis. In this regard, appellant avers that he did most of the meal preparation and housework during the couple's marriage. He also alleges that he toilet-trained Jimmy, takes him on outings, includes him in his athletic activities, and teaches him a variety of things. Appellant testified that appellee cooked very few meals for Jimmy throughout their marriage and that she participated in very few social, athletic, educational, or other activities with the child. While the transcript does reflect such testimony, the record also contains contradictory evidence. Marie testified that it was she, along with Jimmy's babysitter, who was responsible for Jimmy's toilet training. This was verified by the babysitter. Furthermore, appellee testified that she makes breakfast for Jimmy every morning before taking him to the babysitter, and on days when she does not have to be at work until 1:00 p.m., she also makes him lunch. Marie also testified that she has taken Jimmy to the playground or to the park to play ball on a number of occasions. The home study report indicates that appellee has worked with Jimmy on his ABC's, reads to him, and participates in a number of activities with him. Thus, there is competent evidence in the record that contradicts appellant's allegations that he shows more concern for Jimmy's well-being than appellee. ¹ See In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983) (hearing judge as factfinder is in best position to evaluate the sincerity and credibility of the witnesses; his findings must be supported by competent evidence).

Appellant also avers that Marie's work schedule greatly restricts the amount of time she can spend with Jimmy and...