Palcsey v. Palcsey

51 Pa. D. & C.4th 157, 2000 Pa. Dist. & Cnty. Dec. LEXIS 111
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedJune 19, 2000
Docketno. FD 95-8366-004
StatusPublished

This text of 51 Pa. D. & C.4th 157 (Palcsey v. Palcsey) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palcsey v. Palcsey, 51 Pa. D. & C.4th 157, 2000 Pa. Dist. & Cnty. Dec. LEXIS 111 (Pa. Super. Ct. 2000).

Opinion

SCANLON,

Theresa Palcsey, appellant (Mother), appeals this court’s December 29, 1999, order granting Mark Palcsey, appellee (Father), unsupervised partial custody of his younger son, Philip, subject to a certain condition imposed in the order.

The order of December 29, 1999, sets forth an exhaustive history of the custody litigation between these parties. Some portion of that history is worth reciting herein.

The parties hereto were married on May 8,1982, separated in early 1995, and were divorced June 23, 1997. The parties have two children, Matthew (dob July 19, 1987) and Philip (dob October 18, 1991). Shortly after separation, a custody consent agreement was executed which was then incorporated into an order of court dated April 13, 1995. This agreement gave primary physical and legal custody of the boys to Mother, while Father was granted partial visitation rights with the minors only under the supervision of the Mother or maternal grandparents, Veronica and Albert Santillo, according to a schedule to be worked out between the parties. Father was unrepresented by counsel at the time the agreement was negotiated and executed. The provisions for supervised visitation were incorporated into the agreement [159]*159because Mother alleged that Father had sexually abused the oldest son, Matthew. The initial report of sexual abuse was apparently made to a physician in February 1995, and was then brought to Allegheny County Children and Youth Services on March 21,1995. An agency determination of “indicated” was communicated on June 9, 1995, even though Father had been advised by correspondence on May 23, 1995, that the case had been closed. A criminal prosecution followed and after preliminary hearing, formal arraignment, and the scheduled commencement of trial, the charges against Father were withdrawn.

The two pending petitions before this court were Father’s September 16, 1996 petition for modification of custody order seeking primary physical custody of both children, and Father’s petition for modification of custody order seeking unsupervised partial custody of both boys.

Following two days of testimony, this court denied Father’s request for primary physical custody of both children; denied Father’s request for unsupervised partial custody of Matthew; terminated the supervised visitation order; and granted Father unsupervised partial custody of the younger son, Philip.

Mother first complains on appeal that this court erred in allowing Father’s expert witness, Dr. Richard Gardner, to testify in violation of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

While this court permitted Dr. Richard Gardner to testify, he was found to be biased, not credible, and his opinions and testimony were completely disregarded by this court in opinion and order of December 29, 1999. Accordingly, there would not appear to be any [160]*160further need to respond to this first complaint of Mother.

Mother next complains that this court erred in not releasing the medical and psychiatric evaluations of Father performed at St. Francis Hospital after Father committed himself there in February 1995. It is further asserted that it was error to not consider these evaluations in the court’s final decision.

It should be noted that counsel for Mother presented a motion to obtain records in motions court on July 30, 1998, requesting that the records of St. Francis Mental Health Facility of Father’s February 1995 admission, be released to the court. While this motion was denied as presented on July 30, 1998, we noted on the order that this issue would be resolved at a subsequent conciliation. Indeed, a custody conciliation was held on August 27, 1998, and in a consent order signed by the parties and counsel that day, Father was directed to execute an authorization for release of the St. Francis Hospital records to be turned over to this court for an in camera review. Those records were subsequently furnished to this court, but neither litigant ever brought the subject up again. The records were not identified in the pre-trial statement filed on behalf of Mother. Further, they were neither referred to at trial nor was there any effort to seek their admission into evidence.

Mother next complains that this court erred in barring its own court-appointed expert, Robert Tedder, L.S.W., from testifying about the diagnostic evaluations he made in his evaluations of Mother, Father, and Matthew.

The parties were ordered in December 1996 to participate in family therapy with Mr. Robert Tedder, a pas[161]*161toral therapist with a master’s in social work. Accordingly, he would hardly be considered a court-appointed expert. Moreover, the testimony sought by Mother to be elicited from Mr. Tedder, involved the diagnosis of Matthew’s psychological and medical condition. (Tr. at pp.183-86.)1 We excluded this testimony on the basis of the lack of competency of a social worker to render medical and/or psychological opinions and, further, because Matthew’s condition had already been described at trial by psychologists and/or psychiatrists.

The law regarding the qualifications of witnesses as experts is well established. Whether a witness has been properly qualified to give expert opinion testimony, is vested in the discretion of the trial court. Abbott v. Steel City Piping Co., 437 Pa. 412, 421, 263 A.2d 881, 885 (1970). Moreover, the Pennsylvania standard of qualification for an expert witness is a liberal one, and if a witness has any reasonable pretension to specialized knowledge on this subject under investigation, he/she may testify, and the weight to be given to the testimony is for the fact-finder. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). We are to determine if the witness has “sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [/her] opinion or inference will probably aid the trier in his search for truth.” Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 36, 485 A.2d 408, 415 (1984).

Mr. Tedder, as a licensed social worker, has no reasonable pretension to specialized knowledge to be tes[162]*162tifying with regard to psychological and/or psychiatric diagnoses. Accordingly, it was proper to preclude him from so testifying.

Moreover, the court had heard from two psychologists and two psychiatrists as witnesses on behalf of Mother with regard to these issues.

The substance of the next three complaints by Mother are that this court refused to decide a factual question as to whether or not Matthew had been sexually abused by Father, and yet allowed Father to have partial custody of the younger brother, Philip, under a best interest of the child standard.

It is axiomatic that the paramount concern in a child custody proceeding is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). In dealing with visitation rights or partial custody cases, however, the more restrictive “grave threat” standard has long been applied. Scott v. Scott, 240 Pa.

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Related

Dambacher by Dambacher v. Mallis
485 A.2d 408 (Supreme Court of Pennsylvania, 1985)
Commonwealth Ex Rel. Sorace v. Sorace
344 A.2d 553 (Superior Court of Pennsylvania, 1975)
Abbott v. Steel City Piping Co.
263 A.2d 881 (Supreme Court of Pennsylvania, 1970)
McMillen v. McMillen
602 A.2d 845 (Supreme Court of Pennsylvania, 1992)
In Re Constance W.
506 A.2d 405 (Supreme Court of Pennsylvania, 1986)
Scott v. Scott
368 A.2d 288 (Superior Court of Pennsylvania, 1976)
Scarlett v. Scarlett
390 A.2d 1331 (Superior Court of Pennsylvania, 1978)
Fernald v. Fernald
302 A.2d 470 (Superior Court of Pennsylvania, 1973)
Costello v. Costello
666 A.2d 1096 (Superior Court of Pennsylvania, 1995)
Kuisis v. Baldwin-Lima-Hamilton Corp.
319 A.2d 914 (Supreme Court of Pennsylvania, 1974)
Commonwealth ex rel. Turner v. Strange
115 A.2d 885 (Superior Court of Pennsylvania, 1955)
S.H. v. B.L.H.
572 A.2d 730 (Superior Court of Pennsylvania, 1990)
Frye v. United States
293 F. 1013 (D.C. Circuit, 1923)

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Bluebook (online)
51 Pa. D. & C.4th 157, 2000 Pa. Dist. & Cnty. Dec. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palcsey-v-palcsey-pactcomplallegh-2000.