Supko v. Monoskey

• Decision Date: 27 May 1983
• Parties: Linda Lee SUPKO, Appellant, v. Paul Robert MONOSKEY.
• Court: Pennsylvania Superior Court

461 A.2d 253

314 Pa.Super. 469

Linda Lee SUPKO, Appellant, v. Paul Robert MONOSKEY.

Superior Court of Pennsylvania.

May 27, 1983

Argued Jan. 11, 1983.

Timothy E. Durant, Clearfield, for appellant.

John R. Carfley, Philipsburg, for appellee.

Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.

POPOVICH, Judge:

Appellant the natural mother of four children, is appealing an order of the trial court which dismissed her "PETITION FOR CUSTODY". We must reverse and remand the matter for the reasons herein stated.

The following facts are undisputed:

Appellant and appellee, the natural father, were married in 1969 and are the parents of four children: Paul Monoskey, Jr., now thirteen years of age; Joseph Monoskey, eleven years of age Wendy Monoskey, nine years of age; and Robbie Monoskey, eight years of age. On September 22, 1977, the parties were divorced and agreed in writing, each with advice of counsel that appellee would have custody of their four children. Visitations were arranged between the parties until the mother decided to retain the children after one of the visits.

On December 3, 1980, appellant, Linda Lee Supko, who has since remarried filed the instant custody petition. After a hearing, the trial court awarded custody to appellee, Paul Robert Monoskey, Sr. This appeal followed.

In this appeal, appellant raises the following issues: (1) whether the trial court's findings, discussion, and opinion failed to provide a sufficient basis upon which to base a determination of custody; (2) whether the trial court failed to consider adequately all relevant facts in reaching its determination contrary to the best interests of the children (3) whether the trial court erred in failing to consider the preferences of the two older children; and (4) whether the trial court placed undue emphasis on the fact that appellant retained the children after a period of visitation to the detriment of due consideration of other factors.

After the hearing, the trial court entered the following formal findings of fact:

"1. [Appellant]-mother left the domicile of the parties on June 5, 1977, and immediately proceeded to cohabit with Paul [Supko].

2. Except for visitations with the mother, agreed to by the parties, the children continued to live with [appellee]-father until retained by the mother on one of the visits, at the direction of her present attorney, and in disregard of the order of limited visitation entered by Honorable John K. Reilly, Jr. of this court.

3. The only attacks upon the fitness of [appellee] were allegations of (a) a drinking problem that [appellee] once had until some six months before the mother left the domicile; and (b) that [appellee] had not provided proper medical care for the children.

4. [Appellee] has not used intoxicants since December, 1976; and there was proper medical care of the children at all times.

5. Divorce proceedings were instituted on June 24, 1977; the mother being represented by her present attorney, Timothy Durant, Esq., and the father by Ira Smades, Esq.

6. In the course of negotiations, attorney Smades prepared and submitted a custody and property settlement agreement which was accepted by the parties and duly executed.

7. No dispute has arisen as to the division and transfer of property.

8. The agreement provided, inter alia, that 'under the circumstances existing at the present time' the husband shall be entitled to custody of all the children, but that the wife shall enjoy liberal rights of visitation as shall be agreed upon by the parties.

9. The father also assumed full and sole duty to support their children.

10. The agreement further provided that in the event the parties should be unable to agree as to visitation, either 'may apply to the appropriate Court having jurisdiction for such order or orders relating thereto as the Court shall determine.'

11. No similar term to that set forth above was provided as to custody.

12. The care given by the father to the children has been wholly adequate, despite claims of the mother to the contrary.

13. No testimony established any change in circumstances which could be considered at all detrimental to the interests or the welfare of the children.

15[sic]. The mother filed a petition for additional visitation; and after hearing, Honorable John K. Reilly, Jr. ordered limited visitation rights, with custody remaining in the father.

16[sic]. Thereafter, the mother obtained the children for a visit, but on direction of counsel failed and refused to return them to the father.

17[sic]. The father filed a petition against the mother seeking an order of contempt for violation of Judge Reilly's visitation order; said petition being filed on November 26, 1980, and hearing fixed for January 14, 1981.

18[sic]. Prior to hearing upon the petition for contempt, the mother's attorney filed the instant one for custody.

19[sic]. The mother is in contempt of the order entered by Honorable John K. Reilly, Jr.

20[sic]. There is no factual basis for the court to change custody from the father to the mother.

21[sic]. There is factual basis for continuing in the mother the prior order for limited visitation." (Emphasis added) Record at # 9.

From the above facts, the court determined that "this agreement for custody, followed by Judge Reilly's order as to visitation, should be sustained and enforced." Trial Court Opinion at 4.

We, however, are unable to engage in a comprehensive review of the record because the record is incomplete.

Generally, in contested custody cases, this Court has applied the following standard of review:

"It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court's findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra."

Parks v. Parks, 284 Pa.Super. 400, 406-07, 426 A.2d 108, 111 (1981). ^[1]

At this stage of the proceedings, we cannot in good conscience exercise our appellate function because this Court is unable to decide on the present state of the record, the applicable standard of review. Appellee alleges that custody was "implicitly" confirmed previously:

"[o]n March 1, 1978, Judge Reilly issued an order granting the mother visitation rights while implicitly confirming custody of the children in the father, Paul Robert Monoskey. Prior to the hearing, [the] Court ordered home studies were completed by the Children and Youth Services division of the Domestic Relations Office of Clearfield County, Pennsylvania. (R 340a-343a). These studies were presented to the Court and considered by the Judge in his determination of the visitation petition on March 1, 1978." Brief for Appellee at 2. (Emphasis added).

On the other hand, appellant counters with the following argument:

"[p]rior to the hearing and decision in the present action, there was no formal custody proceeding nor was there an actual custody order. The visitation proceeding was only to enforce visitation pursuant to the parties['] agreement and the Order of March 1, 1978 was not a Court decision and order on custody." Brief for Appellant at 20. (Emphasis added).

The order of March 1, 1978, provided for the following:

"NOW this 1st day of March, 1978, this matter coming before the Court upon a Petition for Visitation, upon agreement of the parties, it is the ORDER of this Court that the Petitioner shall have the right to visit with her Four (4) Children in her home on every other weekend commencing at 9:00...