Commonwealth Ex Rel. Schall v. Schall

380 A.2d 478, 251 Pa. Super. 262, 1977 Pa. Super. LEXIS 2952

• Court: Superior Court of Pennsylvania
• Decided: December 2, 1977
• Docket: 1439
• Status: Published

Opinions

SPAETH, Judge:

This is an appeal by a father from the lower court’s order awarding custody of a four year old boy to his mother. The mother, appellee, filed a habeas corpus petition to obtain custody of the child on July 31, 1975. On August 28, 1975, an initial hearing was held and temporary custody was awarded to the father, with visitation rights by the mother. A second hearing was held on December 3, 1975, and an order was entered maintaining the status quo. Legal argument was had on February 3, 1976, and on March 31, 1976, the lower court granted the petition for habeas corpus and awarded custody to the mother. This appeal followed.

In a child custody case the hearing judge’s inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). Where the hearing judge has failed to comply with these requirements, we have not hesitated to remand. Id. Where, however, the hearing judge has complied with these requirements, we have consistently held that we must defer to his findings. Commonwealth ex rel. Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) (“absent an abuse of discretion, his decision will not be reversed”); In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976) (“we must defer to his findings”); Clair Appeal, 219 Pa.Super. 436, 281 A.2d 726 (1971) (“must always give great weight to [judge’s] opinion”); Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa.Super. 102, 192 A.2d 154 (1963) (“surely should remain in [judge’s] discretion”); Commonwealth ex rel. Dinsmore v. Dinsmore, 198 Pa.Super. 480, 182 A.2d 66 (1966) (“should give great weight to the opinion of the hearing judge . . . [who] is in a much better position . . . .”).

In the present case the hearing judge, President Judge Clinton Budd PALMER, has complied with the requirements that we have imposed, for he has filed a substantial opinion in which he summarizes and discusses the evidence and carefully explains the reasons for his decision to award custody of the child to the mother.¹

Despite our confidence in the hearing judge’s factual findings, we are nevertheless unable to make an appropriate review of his decree. In his opinion the hearing judge relied explicitly on the “tender years” presumption. After he wrote his opinion, the Supreme Court in a plurality opinion indicated that in view of the concept of the equality of the sexes, the “tender years” presumption retained no vitality, even as only a procedural device by which to allocate the burden of proof. Thus Mr. Justice NIX said:

Courts should be wary of deciding matters as sensitive as questions of custody by the invocation of “presumptions.” Instead, we believe that out courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case then before the Court.

Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 300, 368 A.2d 635, 640 (1977).

Following this lead, we have now held that the “tender years” presumption has been “eliminated.” McGowan v. McGowan, 248 Pa.Super. 41, 44 n. 1, 374 A.2d 1306, 1308 n. 1 (1977).

Given this change in the law, in fairness both to the father and mother, not to mention the child, we must remand so that the hearing judge may consider whether in light of Spriggs and McGowan his decision would be different. See Lough v. Charney, 250 Pa.Super. 314, 378 A.2d 951 (1977). We expect that he will explain the result of this consideration by filing a supplemental opinion, after which the parties may request further argument before us.

Case remanded for proceedings consistent with this opinion.

VAN der VOORT, J., files a dissenting opinion. JACOBS, J., dissents and would affirm.

1 . We recognize that the dissenting opinion disagrees with the hearing judge’s findings. Having carefully examined the record, however, we are not persuaded that the hearing judge’s findings are not supported by the record. We consider it unnecessary to elaborate upon this conclusion beyond observing that if an appellate court chooses to reject a hearing judge’s findings, it has a double obligation: It should demonstrate, by reference to the record, first, why the judge’s findings are not supported, and second, why its substituted findings are supported, by the record. The dissenting opinion undertakes neither of these demonstrations, but rather substitutes its. own appraisal of the witnesses’ credibility, while failing to discuss portions of the testimony.