Summers v. Summers

417 A.2d 651, 273 Pa. Super. 285, 1979 Pa. Super. LEXIS 3407
CourtSuperior Court of Pennsylvania
DecidedDecember 21, 1979
Docket965
StatusPublished
Cited by11 cases

This text of 417 A.2d 651 (Summers v. Summers) 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
Summers v. Summers, 417 A.2d 651, 273 Pa. Super. 285, 1979 Pa. Super. LEXIS 3407 (Pa. Ct. App. 1979).

Opinions

SPAETH, Judge:

The lower court granted a father’s petition for custody of his minor son, Todd. The mother appeals, contending that the lower court erred and that the best interests of Todd will be served by granting custody to her.

The father was eighteen, and the mother was sixteen at the time of their marriage in May 1975. Todd, their only child, was born in November 1975. The parties separated in the fall of 1977 and were later divorced. After the separation the father went to live with his parents in their home on Elm Street in Danville, and the mother and Todd went to live with David Diehl, a friend of the mother’s, at Diehl’s father’s house in Danville. The father filed a petition for custody of Todd in February 1978. On March 30, 1978, upon stipulation and agreement of the parties, an order was entered granting custody of Todd to the mother with extensive visitation to the father, including five weeks of visitation during the summer. In August 1978 the father filed a petition asking that the order of March 30th be modified to grant custody of Todd to him. A hearing was held on this petition on January 10,1979, and on April 26,1979, the lower court filed an opinion and order awarding custody of Todd to the father. This appeal followed.

The testimony offered at the custody hearing of January 10 was as follows.

[287]*287Evelyn Lewis, a Children and Youth Services Director for Montour County, testified as to her investigation of the Diehl home and her interview with Todd’s mother. Ms. Lewis testified that the home was located in a sparsely populated rural area and was occupied by David Diehl, his father Nelson Diehl, Todd, and Todd’s mother. Todd had his own room. David Diehl and the mother were living as man and wife, although not legally married. The mother served as a housekeeper for the Diehls and was paid sixty dollars per week for this. From her interview with the mother, during her visit, Ms. Lewis learned that the mother, David Diehl, and Todd would often attend motorcycle meets on weekends. They would sometimes travel to these meets in their van and sleep overnight in the van. Occasionally they would stay at a motel. Ms. Lewis described Todd as a very relaxed and precocious youngster, and said that his “relationship [with the mother] was good . . . [t]he child is thriving.” She could not offer an opinion as to Todd’s relationship with his father, as she had not observed them together. She did investigate the father’s home, but no testimony was elicited from her with respect to it, nor is there otherwise any evidence concerning her investigation in the record before us.

The father testified in his own behalf. He worked five days per week from eight in the morning until five thirty at night, and was living in his parents’ home with them and his younger brother. He testified that he had been paying $86 per month in support and that he had always been punctual with the payments. He described his parents’ home as a three bedroom house with a very large yard. The house is located only three blocks from an elementary school and there are other families with small children in the neighborhood. He said that his parents and brother got along very well with Todd. On cross-examination he admitted that he often went out drinking at night.

The paternal grandfather testified that Todd and the father got along very well while Todd was staying at his house during the five week visitation in the summer of 1978. [288]*288Todd fell and broke his leg while visiting. The paternal grandmother testified that her work schedule could and would be arranged so that someone in the family would always be home with Todd.

The mother testified in her own behalf. She said that she and Todd were now living with David Diehl in Danville. They had moved out of Diehl’s father’s home in December 1978, and had purchased a two bedroom trailer and a ten acre lot and were starting a home of their own. She testified further that neither she nor Diehl were in a hurry to marry but that they would like to get married and have a child within a year or two. She said that they would probably be married before Todd started school “to make stable parents for him while he’s in school.” She also said that she and Diehl both wanted their relationship to be a permanent one. She described Todd’s relationship with Diehl as similar to a father-son relationship.

The mother further testified that in the early part of 1978 she and Todd went to Florida with Diehl. They lived there with Diehl's aunt; Diehl worked at a job and took a motorcycle repair course. In June the mother returned with Todd to Pennsylvania so that Todd could begin his five week visitation period with his father. She went back to Florida but left Diehl to go on what she described as a “wild spree for five weeks” with Paul Szili, a longtime friend. She stayed with Szili in Florida and came back with him to Pennsylvania to get Todd at the end of the five week period. She had missed Todd during the visitation. She and Todd then traveled to New York with Szili in her truck. While there Szili was arrested for possession of marijuana and the truck was impounded for a brief period. After this the mother returned to Danville and resumed her relationship with David Diehl. She said that she did not know why she left him for Szili, that it was foolish, that she was sorry that she did it, and that she decided to return to Diehl during the trip to New York. She admitted that she and Diehl used marijuana on occasion.

[289]*289David Diehl did not testify at the hearing, because, according to the mother, he had just begun a new job and could not leave the job to testify.

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Kimmey v. Kimmey, 269 Pa.Super. 346, 356, 409 A.2d 1178, 1182 (1979); Sipe v. Shaffer, 263 Pa.Super. 27, 34, 396 A.2d 1359, 1363 (1979). In Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979) this court described the respective duties of the lower court and appellate court as follows:

In 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, 267 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 or 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.

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Summers v. Summers
417 A.2d 651 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
417 A.2d 651, 273 Pa. Super. 285, 1979 Pa. Super. LEXIS 3407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summers-v-summers-pasuperct-1979.