Commonwealth Ex Rel. Montgomery v. Montgomery

442 A.2d 791, 296 Pa. Super. 325, 1982 Pa. Super. LEXIS 3608
CourtSuperior Court of Pennsylvania
DecidedMarch 12, 1982
Docket1248
StatusPublished
Cited by10 cases

This text of 442 A.2d 791 (Commonwealth Ex Rel. Montgomery v. Montgomery) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Ex Rel. Montgomery v. Montgomery, 442 A.2d 791, 296 Pa. Super. 325, 1982 Pa. Super. LEXIS 3608 (Pa. Ct. App. 1982).

Opinions

HESTER, Judge:

Presently before the court is appellant’s appeal from the order1 of the lower court dated November 12, 1980, wherein the lower court granted general custody of the parties’ three minor sons to appellee father.

[327]*327The record herein consists in excess of 500 pages of testimony clearly evidencing a situation which we are asked to resolve in numerous cases; that is, to decide which of two loving, caring parents should be awarded general custody of the parties’ minor children.

The lower court convened six separate hearings: October 11, 1979, November 27, 1979, February 13, 1980, March 18, 1980, August 13, 19802 and September 29, 1980, following which the court issued a 25-page Opinion and Order dated November 12, 1980 granting custody of the three minor children to their natural father, the appellee herein. It is from this Order that the instant appeal has been taken.

We affirm.

It is undisputed that our paramount concern in a child custody proceeding is to determine what is in the best interest and welfare of the child involved considering his or her spiritual, emotional, physical and intellectual well-being. 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); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979); Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979); In re Jennifer Lynn Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981). In a contest between the child’s parents, both mother and father bear the affirmative burden of proving that an award of custody to them would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977).

As this court aptly stated in Lewis v. Lewis, supra, at 783-4:

[328]*328In 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 of 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.

Additionally, and assuming that the lower court has fully discharged its responsibilities to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself, and then and only then, file a comprehensive opinion containing its findings of fact and conclusions of law, we thereafter adopt the reasoning of Judge Price contained in Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super. 444, 448, 427 A.2d 1370, 1372 (1981), that:

“. . . since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his ‘determination of custody [329]*329should be accorded great weight.’ Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See, e.g., Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1973); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court’s determination, we will defer to it, absent an abuse of discretion, if the judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). ...”

We have engaged in a comprehensive review of this voluminous record and have made our own independent judgment based upon our careful review of the evidence. In discharging this duty, we are satisfied that all relevant facts and circumstances have been fully explored and developed by the parties and where necessary, by the lower court.

With these responsibilities as our guideposts, we have concluded that the lower court has made a penetrating and comprehensive inquiry in order to develop a complete record. In support thereof, the lower court has filed a detailed Opinion consisting of 25 pages, replete with numerous Findings of Fact, a detailed review of the applicable law, and the reasoning behind its Conclusions.

The record discloses that the parties were married on September 1, 1961, and that three sons were born of the marriage; Mark, on December 16, 1967; Douglas, on July 9, 1971; and Greg, on April 10, 1973. At the time of the first hearing, the appellant was 36 years old and the appellee, 41. In 1966, the parties built a three-bedroom home at 41 Willow Drive, in Washington, Pennsylvania, where they resided together with their three minor children until their first separation in August of 1978. At that time, the appellant removed himself and the boys and stayed nearby with his [330]*330parents for approximately one week. At the end of that one week separation, he returned the boys to their mother at the Willow Drive property.

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Commonwealth Ex Rel. Montgomery v. Montgomery
442 A.2d 791 (Superior Court of Pennsylvania, 1982)

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442 A.2d 791, 296 Pa. Super. 325, 1982 Pa. Super. LEXIS 3608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-montgomery-v-montgomery-pasuperct-1982.