Sweeney v. Sweeney

361 A.2d 302, 241 Pa. Super. 235, 1976 Pa. Super. LEXIS 2027
CourtSuperior Court of Pennsylvania
DecidedMarch 28, 1976
Docket1346
StatusPublished
Cited by19 cases

This text of 361 A.2d 302 (Sweeney v. Sweeney) 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
Sweeney v. Sweeney, 361 A.2d 302, 241 Pa. Super. 235, 1976 Pa. Super. LEXIS 2027 (Pa. Ct. App. 1976).

Opinion

SPAETH, Judge.

This is an appeal from an order awarding custody of a six year old boy, Edward, Jr., to his father. Because the lower court’s order made no provision for visitation by the mother, the record must be remanded.

I.

Edward, Jr., was born to appellee and appellant, who were husband and wife, on June 16, 1970. In the fall of 1971, appellee and appellant separated, with appellant retaining custody of Edward. 1 On December 22, 1972, appellee took Edward from the home of the babysitter who cared for Edward while appellant worked to his home in Philadelphia. 2 He then arranged to have Edward cared *237 for in a day care nursery center during his own working hours.

On January 16, 1973, appellant filed a petition for a writ of habeas corpus in the Philadelphia Court of Common Pleas. A hearing was held on February 27, 1973. The hearing judge issued a temporary order granting appellant visitation but refused to decide the issue of custody until the homes of both parents had been investigated. Further hearings were held on June 5 and 12. Appellee testified that he had enrolled Edward at the day care center, and the judge ordered an investigation of the center. It was also brought out at the hearings that a male friend of appellant stayed overnight during Edward’s visitation. The judge against refused to decide the issue of custody, but at his urging it was agreed that Edward would live with appellee from Sunday evening through Friday morning and would continue to attend the day care center, and that appellant would pick Edward up at the center on Friday afternoon and return him to appellee Sunday evening.

On November 27, 1973, appellant’s petition for habeas corpus and a petition that appellee be held in contempt for failure to abide by the order of June 12 were heard, with a further hearing on November 30. The evidence showed that a female friend of appellee stayed overnight while Edward was in appellee’s care. For the third time, the judge refused to decide the issue of custody, instead entering the following order, referred to by both parties in their briefs as “split visitation:” 3

By agreement: Father is to pick up child from Sunday 6 p. m. to have child until Friday. Mother will pick up child from Day Care Center on Friday afternoon and will have the child until Sunday evening until 6 p. *238 m. at which time father will pick up child from mother’s residence. This formula schedule and time schedule will continue. On Christmas mother will have child all day 12-23-73,12-24-73 (12-25-73) until 12:00 noon on 12-25-73 at which time father will pick up child from mother’s residence and will have child until 12/29/73 at 6:00 p. m. At that time he will return child to mother’s residence. In addition it is the Order of this Court that at no time shall the child be in the same room or presence of either Frank Michner [sic] during the time child is with mother or Carol Spear during the time child is with father. Review in four months from the date hereof at the request of either party or counsel.

On July 23, 1974, pursuant to the provision for further review, counsel for appellant wrote the judge, asking that he hear the petition for habeas corpus and make a final award of custody. In response, counsel was advised that the judge was no longer sitting in the Domestic Relations Division, and that it would therefore be necessary for another judge to hear the case. The judge to whom the case was then assigned, and from whose order the present appeal is taken, noted that the case would take all day, placed it on a special list, and heard testimony on December 18, 1974, almost two years after Edward had been taken by appellee. By this time, the parties were divorced, appellant had married the male friend who had stayed overnight with her, and appellee the female friend who had stayed overnight with him.

The December 18 hearing was extensive. Both parties testified, as did three witnesses for appellee and appel-lee’s new wife. The judge interviewed Edward, then 4% years old, in chambers, without the presence of counsel for either side and without a court reporter. He interviewed Edward for a second time on January 16, 1975, again without counsel present and without a court reporter. On April 30, 1975, a further hearing was held, *239 so that appellant’s new husband and two additional witnesses might testify. The judge then entered the following order:

AND NOW, this 7th day of May 1975, after hearings had and testimony heard, the Court awards custody of EDWARD SWEENEY, minor to his father, EDWARD SWEENEY.

The judge entered no order regarding visitation by appellant, nor does his opinion make any mention of visitation.

Appellant filed this appeal on May 22, 1975. On June 5 she obtained a supersedeas from this court, staying the award of custody and permitting her to retain the visitation rights granted her by the order of November 30, 1973.

This court has said, most recently in Gunter v. Gunter, - Pa.Super. -, 361 A.2d 307 (filed 3/29/76), that “in a child custody case two requirements must be satisfied: the record must be complete; and the hearing judge must by his opinion give us the benefit of a thorough analysis of that record. If these requirements are not satisfied, the judge’s order will be reversed . . .” Id. at-, 361 A.2d at 307. See also Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974); Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974) ; Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 29, 312 A.2d 58 (1973). Here, these requirements have been only partly satisfied.

Except in one respect, which will be mentioned in a moment, the record is complete. Three hearings were held before the first hearing judge; the second judge devoted more than a full day to the case, and heard testimony from both parties and their spouses. In addition to the testimony noted supra, the judge considered the report of a psychiatrist’s examination of Edward (Record *240 at 24b-25b) and a lengthy letter from the Educational Supervisor of Edward’s day care center (Record at 26b-27b). The financial support available from both parents and the physical arrangements in both homes were thoroughly explored.

The one respect in which the record is not complete was that Edward’s testimony in the judge’s chambers was not transcribed. In Gunter v. Gunter, supra, we pointed out, collecting the cases, that this was error— error, moreover, that could not be waived.

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Bluebook (online)
361 A.2d 302, 241 Pa. Super. 235, 1976 Pa. Super. LEXIS 2027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeney-v-sweeney-pasuperct-1976.