Trefsgar v. Trefsgar

• Decision Date: 29 December 1978
• Citation: 261 Pa.Super. 1,395 A.2d 273
• Parties: Brooks N. TREFSGAR v. Lois N. TREFSGAR, Appellant.
• Court: Pennsylvania Superior Court

Page 273

395 A.2d 273

261 Pa.Super. 1

Brooks N. TREFSGAR v. Lois N. TREFSGAR, Appellant.

Superior Court of Pennsylvania.

Argued June 16, 1978.

Decided Nov. 3, 1978.

Reargument Denied Dec. 29, 1978.

Henry O. Heiser, III, Gettysburg, for appellant.

Bernerd A. Buzgon, Lebanon, for appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

CERCONE, Judge:

This is an appeal from the order of the Common Pleas Court of Lebanon County which awarded the custody of a minor child, Lea Brooks Trefsgar, to her father, Brooks Trefsgar. The mother of the child, Lois Trefsgar, filed exceptions to the order which were dismissed nine months after they were filed. The mother appealed. We reverse the order of the lower court and award custody to the mother.

The parties were married in 1967, and their only child, Lea, was born that year. Both parties testified to marital strife which began shortly after their marriage. In January, 1976, after approximately fourteen marriage counselling sessions, appellant decided to leave the marital domicile and take Lea, their child, with her. Appellant eventually settled in Maryland where she began custody proceedings. Appellant was granted custody pendente lite, and appellee was served with a notice of the order and rule to show cause within 30 days of that service. Appellee obeyed the order from February through September of 1976 by returning Lea to her mother in Maryland after the exercise of every other weekend visitations in Pennsylvania. However, in September, 1976, appellee retained Lea for an extra day and threatened to keep her in Lebanon. Appellant persuaded him to return Lea to Maryland, whereupon a decree pro confesso was entered in an award of custody to the mother. According to the docket entries from the Maryland proceedings, a certified copy of which was introduced into evidence, ¹ notice of the entry of the decree pro confesso was sent to the father. However, on his next weekend visitation, he retained Lea and instituted these proceedings in Lebanon County to procure permanent custody of Lea in himself.

At the custody hearing in Pennsylvania, Mr. Trefsgar testified that he was a college graduate, that he was self-employed in the insurance business and earned approximately $26,000 per year. His work schedule involved a five-day work week beginning each day at 9:00 A.M. and ending between 4:00 and 5:00 P.M.; he rarely worked evenings. He lives in a home he purchased, in a residential neighborhood. He testified that Lea dresses herself, and he then takes her to school. They eat some meals at home and others at his father's restaurant. Finally, Mr. Trefsgar said he takes Lea to church, and that they also enjoy athletic activities such as bicycling, swimming, tennis.

Mrs. Trefsgar testified that she is also a college graduate and is employed as a sales representative for a communication consulting company. Her working hours are 9:00 A.M. until 5:00 P.M., five days per week. She resides in an apartment complex in Columbia, Maryland, which is near two recreational areas, an elementary school and shopping center. Although Lea was not enrolled in Sunday school in Maryland, Mrs. Trefsgar explained that she would be soon and that Lea received spiritual training in the home since Mrs. Trefsgar had taught Sunday school at one time. The activities in which the child and her mother engaged included crafts, attending concerts, visiting the library, walking, and kite flying.

Several witnesses testified on behalf of each parent and indicated that they both loved the child and were fine parents. Lea's teachers from her school in Maryland testified that both parents had personally contacted them concerning Lea's progress in school. They testified further that Lea was well adjusted, of above average intelligence and maturity, and got along well with other children.

Upon questioning by the judge, Lea said she could not choose between her parents concerning with which she would rather live. She testified she had a lot of friends in Columbia and participated in an after-school program. Lea complained that her paternal grandmother said unnice things about her mother, but that she liked Lebanon as well as Columbia and would be willing to visit either parent on the weekends. If forced to make a choice, Lea said she would choose to live in Lebanon only because she had more friends there and that there were more things to do. The judge specifically clarified that Lea's preference referred to a location and not a person.

Based on this evidence, the lower court decided the best interests of the child could best be served by awarding custody to her father. In his opinion, the lower court judge stated that Mrs. Trefsgar showed a "lack of conscious concern for Lea's emotional needs in time of crisis," and that she demonstrated "a lack of genuine and complete solicitude for her daughter." The lower court drew these inferences from incidents where Mrs. Trefsgar took Lea to dinner or sailing with a male friend of hers and his daughter, an emotional phone call between mother and daughter when Mr. Trefsgar retained Lea in Pennsylvania, and Mrs. Trefsgar's failure to enroll her daughter in Sunday school. The court felt this demonstrated "an emerging pattern of her reactions to Lea's needs in times of extremis" which would not serve Lea's best interests. The court refused to consider that Mr. Trefsgar had violated the Maryland court order by retaining Lea in Pennsylvania because the court believed Mrs. Trefsgar was as equally guilty of violating the status quo in removing Lea from the marital domicile at the time the parties separated.

In reviewing an award of child custody, our paramount concern is the best interest of the child. The burden is on the appellant to establish that the lower court's order was erroneous in fact or based on an error of law. "Since the lower court has the advantage of seeing and hearing the parties, we must accord the custody order much weight. But, we must also review the record and make an independent judgment on the merits." Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 117, 245 A.2d 663, 665 (1968). Although we may not nullify the fact finding of the court below, we are not bound by inferences drawn by the lower court that are not supported by the evidence. Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 147, 331 A.2d 665 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973); Commonwealth ex rel. Bowser v. Bowser, 224 Pa.Super. 1, 302 A.2d 450 (1973). In our independent review of the evidence we cannot agree that the best interests of the child are served by awarding custody to her father.

Primarily, we disagree with the inferences drawn by the lower court in its opinion. We do not feel, as did the lower court, that the fact that Mrs. Trefsgar removed Lea from the home cancels out the act of Mr. Trefsgar's violation of the Maryland court order. "In determining whether custody of a minor child should be given to her father or mother only the welfare of the child and not the question of which of the parents is to blame for the failure of the marriage should be considered." Commonwealth ex rel. Horton v. Burke, 190 Pa.Super. 392, 396, 154 A.2d 255, 257 (1959). When Mrs. Trefsgar left the marital domicile, the child had to go somewhere and she felt Lea would be best cared for with her. The mother then went through the necessary legal channels to secure permanent custody of the child and was successful. The father chose not to contest the custody decree Pro confesso and denied receiving notice of the order, although the docket entries indicate he was so notified. Hence his actions were in direct contradiction of the law and should have been recognized by the lower court. Just as Mrs. Trefsgar submitted to the jurisdiction of the court of Pennsylvania to fight for the custody of Lea, Mr. Trefsgar could have legally argued for Lea when afforded the opportunity prior to the Maryland decree Pro confesso. See Commonwealth ex rel. Blank v. Rutledge, 234 Pa.Super. 339, 344, 339 A.2d 71 (1975).

We also disagree with the lower court's inference that the mother's actions demonstrated a disregard for the child during a time of crisis. We agree with the lower court that any separation from one parent by a child of tender years may create emotional trauma. However, the testimony clearly indicates that Lea had adjusted to her new surroundings, was doing well in school, and had made many new friends. The incidents relied upon by the lower court concerning the mother's behavior are far from making her an unfit mother. Instead we see the evidence as demonstrating a young mother, trying to make a new life for herself and her daughter, by moving to Maryland and obtaining an order to secure the custody of Lea. Lea's stated preference to be in Lebanon only relates to her familiarity with the location and, since she is a child of tender years, should not be given great weight. Commonwealth ex rel. Baisden v. DeMarco, 215 Pa.Super. 38, 41, 257 A.2d 365 (1969). Based on all the evidence presented, we do not find support for the lower court's conclusion that the mother had demonstrated a lack of concern for her daughter during this difficult time.

We do not defer to the tender years presumption in reaching our decision, and we specifically disregard any mention of it in the briefs or the opinion of the lower court since it no longer is applicable in Pennsylvania. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). When looking at the evidence as presented, absent the inferences and conclusions drawn by the lower court which we find are not supported by the evidence, we conclude the best interests of the child would best be served by maintaining the status quo established by the mother under the Maryland decree Pro confesso. We cannot ignore nor condone the acts...