M.C. v. R.W.

580 A.2d 1124, 398 Pa. Super. 183, 1990 Pa. Super. LEXIS 2859
CourtSuperior Court of Pennsylvania
DecidedSeptember 26, 1990
DocketNo. 02523 and 02524
StatusPublished
Cited by6 cases

This text of 580 A.2d 1124 (M.C. v. R.W.) 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
M.C. v. R.W., 580 A.2d 1124, 398 Pa. Super. 183, 1990 Pa. Super. LEXIS 2859 (Pa. Ct. App. 1990).

Opinion

MONTEMURO, Judge:

This is an appeal from two orders respectively restoring appellee’s partial custody1 of the parties’ minor daughter, and awarding him $2,000 in counsel fees.

The child who is the subject of this litigation was born August 8, 1985. Her parents separated in February of 1987, and during the next five months, until their December 1987 divorce, there were apparently several separations and attempts to reconcile. Appellant retained primary custody of the child throughout. In November of 1987, following one of the child’s visits with appellee, appellant made contact with Bucks County Children and Youth Services with the objective of instituting a complaint against appellee. This complaint, and others which followed, contained aver[186]*186ments that appellee had sexually abused the child, and that his partial custody rights should be severely curtailed or terminated altogether. The children’s authority notified appellant the following January of its conclusion that the complaint was unfounded. After a custody hearing held January 21, 1988, primary custody was affirmed in appellant, with substantial partial custody in appellee. The trial court found, following day long proceedings at which seven witnesses testified on appellant’s behalf, that no evidence of sexual abuse had been demonstrated by appellant, whom the court concluded was not a credible witness.

In March of 1989, appellant filed an emergency petition for modification of the custody order, which was heard by a judge other than the who had presided over the original proceedings. Appellee’s rights to custody of the child were suspended, and contact was restricted to supervised daytime visits. At approximately the same time, appellant filed a second sexual abuse complaint with Children and Youth Services. Of this complaint appellant received word in May that the agency had concluded it to be unfounded. Meanwhile, the restrictive visitation order was vacated in April, and a hearing on the matter set for May; no appeal was taken from this alteration.

On May 14, 1989, after a weekend visit with appellee, appellant brought the child to Children’s Hospital for examination. The on duty pediatric resident found that although the child’s vaginal area was more irritated than could be considered normal, apart from the child’s statements, the physical signs were inconclusive, being equally consistent with causes other than sexual abuse. However, because the child was fearful and had given verbal indications of abuse, another complaint was instituted with the children’s agency. A second emergency petition for modification of the January 21, 1988 custody order was lodged contemporaneously with the third complaint, and again the January order granting appellee substantial partial custody was vacated pending further hearings, which were held on June 16, and September 1, 1989. During this period appellee and [187]*187his family engaged the services of a registered pediatric nurse to be present during visits with the child. The nurse, along with the psychologist on whose report the first emergency petition was granted, testified during these hearings. Again appellant’s evidence was rejected as incredible by the trial court; appellee’s partial custody was restored, and appellant was assessed counsel fees. This appeal followed.

Appellant has presented us with a catalogue of alleged errors which we will address seriatim. Preliminarily, however, we note that:

Our paramount concern in custody matters is the best interest of the child, including the child’s physical, intellectual, emotional and spiritual well-being. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). In these matters, our scope of review is broad. Burke v. Pope, 366 Pa.Super. 488, 492, 531 A.2d 782, 784 (1987); However, “... this broader power of review was never intended to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and the knowledge of the subject can best be determined by the judge before whom they appear.” Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987) (citations omitted). We, therefore, are “empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ...; and thus, represent a gross abuse of discretion, ... (Emphasis in original).” Id., 515 Pa. at 148, 527 A.2d at 529, quoting Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (citations omitted).

Schwarcz v. Schwarcz, 378 Pa.Super. 170, 177-78, 548 A.2d 556, 560 (1988).

Appellant first argues that the trial court abused its discretion and endangered the child by denying her petition to suspend appellee’s unsupervised visitation. She bases [188]*188her claim on her own testimony as to the child’s behavior after spending time with appellee, some exegesis of the medical findings, and some of the testimony of the child’s psychologist. Since appellant’s presentation is, in large measure, an argument that the trial court should have believed her witnesses rather than appellee’s, we can only reiterate the principle already cited, that:

the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and the knowledge of the subject can best be determined by the judge before whom they appear.

Lombardo, supra. The persuasive nature of Judge Clark’s credibility findings are bolstered even further by his thoughtful and careful analysis of the proceedings he heard, and his willingness to reassess appellant’s accusations. His conclusion, that appellant had consistently fabricated the tale of abuse, was not arrived at lightly, and he pointed out that never had the child complained of ill treatment except in the company and, by implication, at the instigation of appellant. We have been offered no substantive basis on which to reject these findings—quite the opposite.

Appellant next assigns error to the trial court’s refusal to allow testimony from Dr. Pamela Kane, a licensed psychologist as to what is termed, “the child’s developmental and sexual abuse history.” (Appellant’s Brief at 25) Since Dr. Kane received all of her information as to the child’s development and the alleged sexual abuse from appellant, her recitation would merely have presented information already before the court through appellant’s testimony. Moreover, any opinion of her own as to the truth of the the accusations is impermissible under the rule in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), in which our supreme court held that such evidence invades the province of the factfinder. See also, Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355

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Bluebook (online)
580 A.2d 1124, 398 Pa. Super. 183, 1990 Pa. Super. LEXIS 2859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mc-v-rw-pasuperct-1990.