Shoup v. Shoup
| Decision Date | 12 July 1978 |
| Parties | James M. SHOUP v. Donna J. SHOUP, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted April 11, 1977.
George H. Hoffman, Pittsburgh, for appellant.
Frank P. Krizner, Butler, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
The six Judges who decided this case being equally divided the order is affirmed.
PRICE, J files an opinion in support of affirmance in which JACOBS, P J. and VAN der VOORT, J., join.
SPAETH, J., files an opinion in support of remand in which CERCONE, J., joins; HOFFMAN, J., concurs in the result.
HOFFMAN, J., dissents from an affirmance of the lower court's order granting custody to the father because the record is insufficient to support an order disrupting the children's relationship with their mother.
WATKINS, former President Judge, did not participate in the consideration or decision of this case.
This appeal by the mother of two boys, James, age 12 and Jeffrey, age 10, [1] is from the lower court's order granting custody to the father. Because we find the issues raised on appeal to be meritless, we would affirm the order of the court below.
Appellate courts enjoy a broad scope of review in custody matters. Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974). Thus, we are not bound by deductions and inferences of the trial court, Commonwealth ex rel. Bowser v. Bowser, 224 Pa.Super. 1, 302 A.2d 450 (1973), nor are we compelled to accept any findings not based on competent evidence. Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). However,
Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972).
The record in the instant case does not reflect any abuse of discretion which would warrant disturbing the lower court's order.
The record indicates that the parties were divorced on March 17, 1972. Appellant, originally awarded custody of the boys on January 23, 1973, has enjoyed continuous custody and, according to the record, has cared adequately for the children since that time. The 1973 order granted appellee liberal visitation rights. On January 22, 1976, appellee filed a petition for custody. Following in camera questioning of the boys and a hearing at which both appellant and appellee testified, the lower court awarded appellee custody.
Appellant's first contention is that the evidence established that the appellee is unfit to assume custody.
Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294, 368 A.2d 635, 637 (1977).
In determining a child's best interest, one must look to the child's physical, intellectual, moral and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, supra; Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Jones v. Kniess, 249 Pa.Super. 134, 375 A.2d 795 (1977).
Testimony in this case revealed that the boys love both of their parents. The father has remarried and lives with his second wife and their child in a house just five hundred yards from the house which appellant and her sons have shared since the divorce. The boys are therefore able to visit their father frequently. In his home appellee has furnished a room for the boys containing twin beds, desks, books, a television and clothes. The father, an avid hunter, has instructed the children on the use of guns and on gun safety, and he often enjoys outings with them. Appellee also purchased small Honda trail bikes for the boys, the use of which their mother opposes. The father and his wife faithfully attend a Bible Baptist Church and have on occasion taken Jeffrey and James to services there. Appellee and his wife appear to be very firm in their religious convictions.
There was testimony that the mother does not attend church or send the children. Because the mother works, the children have no adult supervision for a short time in the mornings before school and again in the evening when they return from school. During the summer months, the boys remain unsupervised throughout the day, except during lunch hour when their mother is with them. During many of these "lulls" the children go to their father's house. Because appellee's wife is not working, she is often available to the children even if their father is not.
Appellant asserts that appellee is unfit because he permits the children to have access to guns and ammunition contained in his gun collection. Appellant contends that appellee has evidenced a "devil-may-care" attitude regarding gun safety. The record, however, reflects the opposite. Both children showed an awareness of the seriousness and danger of handling guns and testified that their father instructed them extensively on gun safety. Both have successfully completed hunter safety courses. However, there was one incident in which the children constructed a homemade bomb from materials found at a shooting range, which they visited in the company of their father. The mother discovered the device and summoned the father. Fortunately no one was hurt. This single prank, in the face of the father's repeated careful instruction on gun safety, does not merit a finding of the father's unfitness.
Appellant also objects to the father's taking the boys to see the movie, The Exorcist. Appellee testified that he and his wife and the boys had discussed seeing the movie. Appellee felt the boys were mature enough to handle it and felt they should learn of the power of Satan. Although James testified that he liked the movie and it did not scare him, appellant testified that Jeffrey had nightmares and that both boys were placed under "severe emotional strain." The lower court did not so find nor can we so conclude from the record.
The fact that appellant does not like the activities that appellee engages in with his children does not render him unfit. The lower court found that the isolated incidents of making the bomb and viewing The Exorcist did not establish that the children's best interests would not be served by the father's custody.
Appellant's second contention is that had each child's stated preference for his father been properly scrutinized, the court would have realized that their decisions were clouded by material advantages provided by the father. It is the law of this Commonwealth that a child's preference, although not controlling, is a factor to be carefully considered, so long as it is based on good reasons. Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977). The child's maturity and intelligence are to be considered. Commonwealth ex rel. Holschuh v. Holland-Moritz, supra. James said he wished to live with his father because his father takes better care of him, and "he doesn't have any boyfriends coming and hitting us sometimes." (N.T. 5.) Jeffrey said he wanted to live with his father because his mother worked and therefore no one was at home after school to take care of him. The court was impressed with the honesty and validity of the stated reasons for the boys' preferences. The court recognized that even if the ten year old might not be considered mature enough to have his preference carry much weight, the fact that siblings should be raised together, absent a compelling reason to the contrary, In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976), would dictate that the brothers both reside with their father. We would find that the lower court properly weighed the children's preferences.
Appellant finally argues that the "tender years" doctrine is applicable. In light of Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), this argument is without merit.
We would affirm the order of the lower court.
JACOBS, P. J., and VAN der VOORT, J., join in this opinion.
This is an appeal from an order awarding custody of James, age 12, and Jeffrey, age 10, to their father. [1] Since I find that the testimony was insufficient to support the lower court's order, I would remand for an additional hearing.
James and Donna Shoup were divorced in March 1972. Since the divorce the mother has taken care of both boys; she was awarded custody in January 1973. The mother is employed full-time, as is the father. However, the father remarried in July 1976, and his new wife stays at home and cares for their child, who was almost one and a half years old at the time of the hearing.
It is well settled that in a custody dispute between parents the court's paramount concern is to determine what award will be in the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-8, 296 A.2d 625 627 (1972); Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951); Commonwealth ex rel. Grillo...
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Shoup v. Shoup
...390 A.2d 814 257 Pa.Super. 263 James M. SHOUP v. Donna J. SHOUP, Appellant. Superior Court of Pennsylvania. Submitted April 11, 1977. Decided July 12, 1978. Page 815 [257 Pa.Super. 266] George H. Hoffman, Pittsburgh, for appellant. Frank P. Krizner, Butler, for appellee. Before WATKINS, Pre......