Murphey v. Hatala

• Decision Date: 06 February 1986
• Citation: 504 A.2d 917,350 Pa.Super. 433
• Parties: Robert D. MURPHEY, Appellant, v. Catherine HATALA, Appellee. 01536 Phila. 1985
• Court: Pennsylvania Superior Court

Page 917

504 A.2d 917

350 Pa.Super. 433

Robert D. MURPHEY, Appellant, v. Catherine HATALA, Appellee.

01536 Phila. 1985

Superior Court of Pennsylvania.

Argued Sept. 10, 1985.

Filed Feb. 6, 1986.

Elaine Smith, Philadelphia, for appellant.

Andrew M. Knowlton, Philadelphia, for appellee.

Before McEWEN, MONTEMURO and TAMILIA, JJ.

MONTEMURO, Judge:

This is an appeal by appellant/father from an order granting sole physical custody of the parties' six-year-old son, Brendan, to appellee/mother.

The parties were married in November 1977 and separated in March 1983. Following their separation, the parties mutually agreed to a joint physical and legal custody arrangement for their son. In July of 1984, appellant filed a complaint in divorce. The parties abided by their mutual agreement for twenty-seven (27) months. Under this agreement, Brendan spent alternating days of the week with each parent. This system afforded Brendan the opportunity to spend three (3) days of the week with appellant and four (4) days with appellee. The parties live in close proximity to each other in Center City Philadelphia. Both parents live far enough away from Brendan's school that driving is necessary.

Appellant filed a petition for confirmation of the mutually agreed upon joint custody arrangement. Following an extensive hearing, which included testimony from a clinical sociologist and a licensed psychologist, the court entered the following order:

AND NOW, this 29th day of May, 1985, after testimony and argument before the Honorable Frank M. Jackson, Appellant's Petition to Confirm Joint Legal and Joint Physical Custody, it is hereby ordered that Confirmation of Custody of the Child, BRENDAN DYLAN MURPHEY is awarded to mother, CATHERINE HATALA with Shared Custody in Father, ROBERT MURPHEY, who shall have BRENDAN on alternate weekends from the close of school on Friday to the commencement of school on Monday morning commencing May 24, 1985. Father to have BRENDAN every Wednesday from close of school to commencement of school on Thursday morning. In the event that Father commences teaching on Wednesday evening, he may choose to substitute either Tuesday or Thursday. Both parties shall alternate the following holidays: Fourth of July; Labor Day; Memorial Day; Thanksgiving; Christmas; New Years and Easter and alternating each year commencing with Father on Fourth of July, 1985. During summer vacation, Father shall have three weeks of his choice. During the Christmas and New Years vacation, both parties shall split the period equally.

A supersedeas was requested by counsel for Father, ROBERT MURPHEY, and is denied. Counseling is directed by both parties and child.

Appellant has presented three issues for our review:

I. Did the lower court abuse its discretion in granting sole custody of minor child to Appellee/Mother absent any evidence on the record to support a finding that a sole custody arrangement is in the best interest of the child?

II. Did the lower court abuse its discretion by awarding sole custody to Appellee/Mother when the record can support no finding that the Appellee/Mother is the more nurturing parent and in contravention of the Commonwealth's Custody and Grandparents Visitation Act?

III. Did the lower court exceed the scope of its judicial authority by granting sole custody sua sponte when the issue before the court was a Petition to Confirm Joint Legal and Joint Physical Custody?

Appellant's brief at 2.

We shall first address appellant's third issue. Having examined the record, the briefs of counsel and the opinion of the court below, we agree with the court below that there is no merit whatsoever in this claim. We adopt the court's opinion as to this issue and see no need to write further on this matter. ¹

Our analysis of appellant's first two issues necessarily requires us to first set forth certain well-settled rules which govern appellate review of these difficult and heart-rending custody cases.

The lodestar, of course, is that in custody cases the paramount concern of the court is the best interest of the child, including the child's physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

The appellate court's scope of review in custody cases is of the broadest type. This broad power is limited to the extent that an appellate court may not nullify the fact finding function of the hearing judge. We are empowered to form our own independent deductions and inferences from the facts found by the hearing judge, but may only interfere with the decisions of the hearing court where there has been a gross abuse of discretion. We must determine whether the trial court's factual findings support the trial court's factual conclusions, but we may not disturb these conclusions unless they are unreasonable in light of the court's factual findings. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Our appellate function is to make an independent judgment, based on the testimony and evidence before us, that is in the best interest of the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 488 Pa. 437, 292 A.2d 380 (1972). We must make an independent examination of the record and make an order on the merits of the case which is right, just and will serve the best interest of the child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974). "After we take full account of the hearing judge's reasoning, still, we must be easy in our own conscience that the judge's award will serve the best interest of the child, or children, in question." Trefsgar v. Trefsgar, 261 Pa.Super. 1, 9, 395 A.2d 273, 277 (1978) (Spaeth, J., concurring).

Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court's order. An abuse of discretion is not merely an error of judgment, but if the court's judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). An abuse of discretion is also made out where "[i]t appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence." In re Masciantonio's Estate, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958). Miller v. Mifflin County Industrial Development Authority, 319 Pa.Super. 188, 465 A.2d 1293 (1983).

We have carefully reviewed the entire record and after applying the above guidelines to the evidence, we are constrained to hold that the hearing judge has abused his discretion by ignoring or disbelieving uncontradicted testimony from the parties' three expert witnesses and by making findings that are not predicated on competent evidence in the record. Further, we are not convinced that the court's order serves the best interest of the child in question.

On review we must first ascertain what the hearing judge's findings of fact are and whether those findings are supported by competent evidence. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We must then determine whether the factual findings that are supported by the evidence in the record support the hearing court's ultimate conclusions. Commonwealth ex rel. Robinson v. Robinson, supra.

The hearing court here has grounded its decision to grant sole custody to appellee upon the following findings: first, that the parties have insurmountable problems in their relationship which would render a shared custody scheme unworkable; second, that appellant is at a disadvantage due to his evening teaching schedule; and finally, that the marital home is Brendan's psychological base, hence sole custody should be awarded to appellee because she resides in the marital home.

We find these "facts" unsupported by the record. Because of this, we are not bound by these factual findings. The hearing judge has abused his discretion by making determinations unsupported by the record. See Commonwealth ex rel. Spriggs v. Carson, supra.

The hearing judge's primary reason for denying appellant's petition for confirmation of shared physical custody is based on his findings in respect to the relationship the parents had with each other. The hearing court articulated its reasoning by stating:

"[i]t would be counterproductive to require these two people to share equal responsibility for the child's upbringing.... [S]o long as 'enormous' disagreements exist on day to day matters, the child must be afforded the stability of a sole custody arrangement. This is not to say that the father is any less loving or concerned as a parent than the mother. Our decision is not based on any findings of deficiency on his part vis-a-vis the child but rather on the obvious failure of both parents to overcome their personal differences in a shared custody setting.

Hearing court opinion at 7.

The hearing judge places great emphasis on the parties' disagreements on day to day matters and practical problems in regard to Brendan's two home living arrangements. He finds these problems to be of such magnitude as to preclude any form of custody other than sole custody.

We acknowledge the testimony in the record as to the discord between the parties and as to their day to day problems and inconveniences. There is also extensive testimony, however, from all three expert witnesses, and the parties themselves, stating that the majority of these problems stem from the friction caused by the frequency of Brendan's exchange between the parties. N.T. May 29, 1985 at 10, 15, 53, 54, 70, 102, 105, 157. All the experts testified that these problems could be overcome with a custody plan affording Brendan larger blocks of time with each parent, thereby lessening the contact time between the parents...