Commonwealth Ex Rel. Grimes v. Grimes

422 A.2d 572, 281 Pa. Super. 484, 1980 Pa. Super. LEXIS 3172

• Court: Superior Court of Pennsylvania
• Decided: October 3, 1980
• Docket: 2195
• Status: Published

Opinions

WATKINS, Judge:

This is an appeal from an order of the Court of Common Pleas of Lebanon County, by the appellant-wife, Carolyn Grimes, appealing an order which granted custody of the parties’ two minor children to the appellee-husband, Roger E. Grimes.

The parties were married in 1967. They had two children; Roger, III, born October 2,1967 and Meredith, born July 24, 1970. The parties were divorced in 1974. Prior to the divorce they had entered into an agreement dated July 26, 1974 which, inter alia, provided that the appellant was to have custody of the aforesaid minor children. On June 6, 1977, the appellee filed an action requesting custody of the children. Testimony was taken thereon on August 24 and 25,1977 and on August 29,1977, the court below entered the order awarding custody of the children to their father. The appellant filed exceptions to the order of the court below and on July 25, 1978, the court below rendered its opinion dismissing the appellant’s exceptions. This appeal followed.

During the testimony taken during the trial of this case it was established that, although the mother had custody of the children, that they spent much time each week with the father and his parents. It was also established that both the father and the mother had spent considerable time with the children and had demonstrated great concern over their development and welfare. However, it was also shown that the mother had had non-marital affairs with two (2) different men during the same period of time. Neither man abused the children. In fact both appeared to have taken well to children. The affairs with both men were pursued with discretion but both men had, from time to time, slept with the appellant in the home where she resided with the children. On appeal, the appellant argues that custody of the children should not have been taken from her due to her non-marital relationships.

The sole issue to be decided in custody proceedings between contending parents is the best interest of the children. Commonwealth ex rel. Holschuh v. Holland, 448 Pa. 437, 292 A.2d 380 (1972). The mere fact of a parent’s non-marital relationship is not sufficient to deny him or her custody of the children. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). However, a parent’s non-marital relationship must be given close scrutiny in determining custody proceedings. The guiding polestar in deciding such matters is the best interests of the children and the non-marital relationship is merely one of the factors which the court must consider in rendering its decision. Gunter v. Gunter, supra. It is the effect of the non-marital relationship on the children and not the fact of the relationship itself which is the crucial factor to be considered by the court. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). In the instant case the court below found that appellant’s non-marital relationships were having a detrimental effect on the children because the children were being provided a bad example by the mother in that her relationships were with different men and were not stable. It is clear from the court’s opinion, however, that this was not the sole reason that it awarded custody of the children to their father. In its opinion it enunciated other circumstances pertaining to the parties’ conduct with the children and found that the father had shown a greater interest in Roger’s school work, that the mother’s conduct after the custody action had been filed was not in the best interests of the children as she had restricted their father’s visitation privileges in apparent retaliation for his initiating the custody action, and that she had left Roger alone in the house for a 2 and k hour period when he was sick. In summary, we hold that the mere fact of a parent’s non-marital relationship is not sufficient grounds to deny him or her of the custody of the children and if the evidence shows that such conduct has not adversely affected the children, and the parent has taken good care of the children, the best interests of the children may be served by placing custody with said parent. Because a non-marital relationship is only one factor to be considered in determining custody and because the court in the instant case did not confine its decision awarding custody to the father to the mother’s non-marital relationship we must continue our inquiry to determine whether the court below was correct in its finding to the effect that the best interests of the children would be served by placing custody of them with their father.

Appellant’s second contention is that the weight of the evidence produced at trial demonstrated that the best interest of the children would be served if she were awarded custody. The appellant argues that the appellee had the burden of proving that he should have custody since the parties’ original separation agreement, executed in 1974, provided that she was to have custody and because appellee was the one seeking to alter the status quo. The appellant argues that appellee has failed to carry that burden. Based upon the trial testimony the court below found that the children were spending great amounts of time with both parents. They generally slept overnight at the house in which appellant resided. The court found that during the school year the children would go from appellant’s home to the home of appellee’s parents where they were seen off to school; at the end of the school day they would return to the grandparents’ home, spend some time with their father at that home or his; have dinner with him at either home, and then return to appellant’s home to sleep and to repeat the pattern the next day. The appellant also points to the fact that during the trial, the trial judge interviewed both children in chambers without permitting either attorney to be present during the interview. The appellant alleges that this was error citing Commonwealth ex rel. Lee v. Lee, 248 Pa.Super. 155, 374 A.2d 1365 (1977). During the interview both children expressed their desire to remain with the appellant. However, a transcript was made of the children’s in camera testimony. After asking many questions designed to put the child at ease, Meredith was asked by the trial court the following:

“Q. .. who would you rather go live with, your Mommy or your Daddy?

“A. My Mom”.

The following dialogue then occurred:

“Q. Why?

A. Because I just like it the way it is.

Q. You like it the way it is?

A. Uh-huh.

Q. And how is that?

A. What?

Q. And how is that? You say you like it the way it is? Well, how is it?

A. I don’t know what you mean.

Q. Well, you’re the one that said you like it the way it is, and I would like you to tell me what you mean by that.

A. I just like going to the shore and I like seeing Spoony and Steve.” (Appellant’s boyfriends)

The girl then went on to testify that she liked the appel-lee’s present wife, her son, and that she also enjoyed her father’s company. Roger Grimes testified as follows:

“Q. Why would you prefer to live with your Mommy?

A. I don’t know. I just like it the way it is.”

Roger then went on to describe various activities which he enjoyed with his father, his present wife, her son, and with his mother. After their testimony the trial judge summarized what they had said to both attorneys. This summary was made part of the record. Prior to taking the children’s testimony the court below had discussed his intention to do so with both attorneys and informed them that afterwards he would summarize what was said by the children and give each attorney an opportunity to suggest any additional questions they would like the judge to ask the children and that he would then recall the children and ask them those additional questions. This procedure was followed by the court and after a summary of their testimony was given to the attorneys, each of them stated that he had no more questions to pose to the children. Under these circumstances we find that the appellant has no cause to complain about the procedure employed by the court. Unlike the situation in Commonwealth v. Lee, supra, the court in the instant case did make a transcript of the children’s testimony thus presenting us with an opportunity to review same. The court below also gave each attorney a summary of the children’s testimony and provided each attorney with an opportunity to question the children through the judge. Where a transcript of the children’s testimony in a custody case is kept, the hearing judge made every opportunity to ask impartial questions, to put the children at ease, and to attempt to determine their true feelings toward their parents, the hearing judge did not err in questioning the minor children without counsel being present so long as the judge agreed to allow each party’s attorney to pose questions to the children through him. Cheppa v. Cheppa, 246 Pa.Super. 149, 369 A.2d 854 (1977). Because the court scrupulously followed this procedure and because both children stated a preference to remain with the appellant during the in camera testimony we hold that the court below did not err when it employed this procedure and that, in any event, the appellant was not prejudiced thereby.

The appellant also argues that the court below erred when it permitted appellee to call approximately fourteen character and reputation witnesses including the mayor of Lebanon and the Council president of the Borough of Cornwall. The appellant objected to the introduction of this evidence but was overruled by the court below and the testimony was permitted. The court below stated in its opinion that evidence of reputations of the parents in a custody action, “though never pivotal, because of mercurial and chameleon-like properties in the concept”, is relevant and material evidence and must be included in the supply of factors reviewed by a court since a parental reputation “can bring instant and constant grief to children”. Although we are mindful that an “array of stars” in the form of celebrity reputation and character witnesses in custody cases may deflect attention from the real issue at hand, i. e. the best interests of the children, we are constrained to agree with the court below in its analysis of the reputation evidence. The lower court recognized the proper status for such evidence in a custody case when it stated that evidence of “good reputation, or the lack of it, is not critical nor the fulcrum for our lever of judgment. But is is a factor to be weighed with all others”. Because the court below recognized the proper weight to be given the reputation evidence we hold that it did not err in admitting same as merely one other element to be considered in determining custody matters.

We then return to the critical issue at hand which is whether the court below erred in granting custody to appellee because the weight of the evidence and the law dictating an opposite result. The appellant points to the fact that the children have been with her since 1974 and to the fact that both children expressed a preference to remain with her as factors militating against the court’s decision. The record shows that appellee is a college graduate presently employed by the Commonwealth of Pennsylvania in the Department of Community Affairs where he is responsible for administering various grant-in-aid programs. He has been employed in such capacity for seven (7) years and earns between $21,000 to $22,000 per year. The appellee presently resides with his second wife and her nine (9) year old son in Cornwall, Pennsylvania in a home which they had built there. The testimony regarding this home demonstrates that it is more than adequate insofar as size and habitability are concerned and would be an adequate place for the children. The appellee testified that he attends church regularly and brings the children when they are with him but that they would only go to church twice a year when they were with the appellant. The record also revealed that the appellee, his wife, and their son enjoyed very good relations with the children and that they regularly participated in many family activities during visitation periods. The appellee's wife is not employed at present and would be able to devote her full time to raising the children.

The appellant is employed at HERCO, Inc. at the Hershey Motor Lodge where she books meetings, conventions and other gatherings. She earns approximately $11,000 per year plus gratuities which bring her total annual salary to about $12,000 per year. The parties’ separation agreement provides that she be permitted to reside in the former marital abode so long as she remains unmarried and has the children. The appellee must then make the mortgage payments and pay certain other bills regarding this home. The appel-lee suggests an economic motive in appellant’s custody petition. However, we note that the appellant also benefits economically from having custody since she had an adequate place to reside, rent free, with certain bills paid when she enjoyed custody of the children. From the testimony adduced of record it does not appear that either parent’s overriding consideration in seeking custody was economic. The court below found that although parents apparently loved and cared for the children that the appellee had shown a greater interest in the son’s school work and that his situation provided a better moral, physical and spiritual situation for the children. While the mother’s non-marital relationships with several men were not sufficient, in themselves, to deprive her of custody of the children they can be considered as one factor in determining custody. Gunter v. Gunter, supra. While we may agree with appellant that the lower court might have placed too much emphasis on this factor we cannot say that it committed reversible error when it awarded custody of the children to the father since the court clearly considered many other relevant factors in making its decision. The fact that Meredith Grimes testified that one of the reasons that she desired to remain with her mother was because she liked “Spooney and Steve” (two of her mother’s lovers) and the fact that the children were aware of the fact that these men were remaining overnight with their mother (at least on occasion) is evidence that her affairs were having a detrimental effect upon the children as they were being raised in an environment where such conduct was considered acceptable.

Even though the original custody agreement provided for custody to be with the mother, the father has produced sufficient evidence so as to enable a fact-finder to decide that he is the one better able to provide for all of the children’s needs. Thus, even though the seven and nine year old children expressed a preference of remaining with their mother the weight to be given their preference is to be determined by the trial judge. Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa.Super. 102, 192 A.2d 154 (1968). Reviewing the testimony of both children relative to their preference we cannot say that the court below erred when it ruled as it did since the children’s testimony revealed that they loved both parents, that both parents cared for the children, and that the reason they wished to remain with the mother was that Meredith liked “going to the shore” and seeing “Spooney and Steve” and Roger merely didn’t see any reason for a change. Considering the entire situation of both parents we find that the court below did not err when it determined that the children’s best interest would be served by placing them with their father.

It should also be noted that the court below granted very extensive visitation rights to the appellant specifically stating three weeks each summer, each Wednesday from 5:30 P.M, to 8:00 P.M., every other weekend Friday to Sunday evening and holidays.

Order affirmed.

SPAETH, J., files a dissenting opinion.