Sawko v. Sawko

• Citation: 425 Pa.Super. 450,625 A.2d 692
• Parties: David Stephen SAWKO v. Lynne SAWKO, Appellant.
• Decision Date: 21 May 1993
• Court: Superior Court of Pennsylvania

Page 692

625 A.2d 692

425 Pa.Super. 450

David Stephen SAWKO v. Lynne SAWKO, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 15, 1992.

Filed May 21, 1993.

David C. Martin, Jr., Pittsburgh, for appellant.

Robert L. Garber, Pittsburgh, for appellee.

Before TAMILIA, JOHNSON and HESTER, JJ.

TAMILIA, Judge.

Lynne Sawko takes this appeal from the August 1, 1990 Order denying her petition for custody modification, establishing a schedule of partial custody during November, 1990, and scheduling a hearing on November 21, 1990, establishing custody and partial custody of the parties' minor child Stephen Ray Sawko, born March 31, 1986. The parties were married on October 5, 1985 and lived in Florida until October, 1987, when mother left father and returned with Stephen to her family home in Allegheny County. Father remained in Florida and continues to reside there with his mother. In this appeal, mother presents two issues for our review:

1. Did the trial court abuse its discretion in declining to modify the existing custody Order in favor of mother following an automobile accident in which father, appellee David Sawko, was injured and the child had been a passenger in the vehicle?

2. Did the trial court err in failing to presume culpability for civil purposes after father invoked his fifth amendment right not to incriminate himself concerning whether he had been drinking or had possession of alcohol immediately prior to the accident?

Mother filed a petition for modification of custody on May 30, 1990, alleging, inter alia, that on May 20, 1990 in Florida, father "drank a sufficient amount of alcohol to become physically intoxicated and drove his truck while the minor child was a passenger in that truck. While he was driving that truck, [father] ran the truck into a telephone pole, causing injuries to [father]" severe enough that he was hospitalized for five days. Hearing was held on the petition on July 30, 1990, and the only witness called was father, who was examined as on cross-examination. On advice of counsel, father declined to answer certain questions surrounding the automobile accident, asserting his right not to incriminate himself.

At the conclusion of the hearing, the trial court left primary custody of Stephen in father, but increased mother's partial custody rights and scheduled a six-month review hearing on the April 24, 1990 custody Order for November 21, 1990. Mother took a timely appeal from the Order of August 1, 1990. On November 19, 1990, the trial court continued generally the six-month review hearing on the basis that jurisdiction in the matter had been vested in this Court by virtue of mother's appeal.

As an initial matter, we note that our paramount concern and the "polestar of our analysis in this case, ... and a legion of prior custody cases, [is] the best interests of the child...." Lee v. Fontine, 406 Pa.Super. 487, 489-490, 594 A.2d 724, 726 (1991) (footnote omitted). The "best interests" standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral and spiritual well-being. Id. at 488, 594 A.2d at 725.

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

Zummo v. Zummo, 394 Pa.Super. 30, 54, 574 A.2d 1130, 1142 (1990) (citations omitted).

For this reason, it is of little moment to the Court that mother failed to raise before the trial court the second issue she now raises on appeal, that "an adverse inference should have been granted" that father had consumed alcohol, that alcohol was in father's automobile and that father was under the influence of alcohol at the time of the automobile accident. Ordinarily, this claim would be waived. Pa.R.A.P. 302(a); 2117(c). However, inasmuch as the custody Order and finding of the trial court, which ignored the adverse inference, could not be known to the mother until the Order was entered, waiver is not implicated. The mere mechanical constraint or procedural defect simply is not applicable. See Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991). The mother raised the issue the first time it became relevant, which was as an issue on appeal and as error on the part of the trial court. We cannot ignore the fact that contrary to most legal proceedings, there are no post-trial motions in custody cases and appeals must be taken from the final court Order. Obviously, if post-trial motions had been possible, such a charge of error would have been relevant at that time and would have preserved the issue for appeal. This situation is clearly distinguishable from Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086 (1993), where the court refused to permit counsel to question the child, without objection by counsel, and raised for the first time on appeal, or Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1985), where the Supreme Court reprimanded this Court for sua sponte raising issues not raised in the trial court, reaffirming the doctrine of waiver as applicable to custody cases. Waiver most certainly applies in situations where an objection is in order and not properly made. It does not apply, as here, where an inference could be derived by action or nonaction of one of the parties, and the trial court, in its findings and Order, failed or refused to draw it. The latter may be charged as error on appeal whether or not counsel specifically requested such a finding during trial.

Turning to the central issue in this appeal, we must determine whether the trial court abused its discretion in declining to modify the existing custody Order in favor of mother as a result of matters alleged in her petition for modification. The Crimes Code states: "A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S. § 4304. This section is to be given meaning by reference to the common sense of the community and the broad protective purposes for which the section was enacted. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Pursuant to 23 Pa.C.S. § 5303(b), Consideration of criminal conviction, where a parent who has pled guilty or no contest to a number of offenses, including 18 Pa.C.S. § 4304, the court is required to determine that the parent does not pose a threat of harm to the child before making an Order of custody, partial custody or visitation to that parent.

In this case, father testified at the July 30, 1990 hearing that he had paid a fine of $52.00 in Florida in connection with the automobile accident on a charge of careless driving. (N.T., 7/30/90, p. 12.) Fla.Stat.Ann. § 316.1925 (West 1990). Father was not charged with driving under the influence, Fla.Stat.Ann. § 316.193, or with possession of open containers of alcoholic beverages, Fla.Stat.Ann. § 316.1936. As a result, father invoked his fifth amendment right against self-incrimination.

The United States Supreme Court recently held:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charges in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct.

Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548, 564 (1990). Careless driving, however, is not a lesser included offense of the more serious charge of driving while intoxicated. Massey v. City of Gainesville, 296 So.2d 64 (Fla.Dist.Ct.App.1974). Therefore, father was not immunized from further prosecution and his fifth amendment claim was a valid one.

We include this discussion not because of our interest in any charges which were filed against father or may have been filed subsequently, but to state facts which we find should have compelled the trial court to further inquiry. This Court cannot conceive the trial court not pursuing father's behavior further if it involved sexual abuse or assaultive behavior involving the child. A single act may trigger a review of a custody Order and may be sufficient to modify or reverse the original custody Order where it is so threatening to the child's physical, psychological or moral well-being as to be required in the best interest of the child. No case law beyond the law of common sense need be cited for this proposition. While father refused to testify as to drinking or having alcohol in his vehicle, there was a stipulation that at the time of the collision there was alcohol in his system and a beer can and one one-ounce container of alcohol in the vehicle (N.T., pp. 14-15). Nevertheless, the trial court would not pursue father's fitness to retain custody of Stephen.

Moreover, we do not find father's invocation of his fifth amendment privilege acted as a bar to further exploration of this issue. While a defendant in a civil case may invoke the privilege of the fifth amendment against self-incrimination, and invocation of the privilege may not be used against him in any way in a subsequent criminal prosecution, the trial court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege....