Tomlinson v. Tomlinson

374 A.2d 1386, 248 Pa. Super. 196, 1977 Pa. Super. LEXIS 2048
CourtSuperior Court of Pennsylvania
DecidedJune 29, 1977
Docket2303
StatusPublished
Cited by53 cases

This text of 374 A.2d 1386 (Tomlinson v. Tomlinson) 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
Tomlinson v. Tomlinson, 374 A.2d 1386, 248 Pa. Super. 196, 1977 Pa. Super. LEXIS 2048 (Pa. Ct. App. 1977).

Opinions

SPAETH, Judge:

This is an appeal from an order awarding custody of a 13 year old girl, Susan Louise, to her father. Because the [198]*198findings of the hearing judge are not supported by competent evidence, we reverse.

I

Janet and James Tomlinson were married in July, 1961. Their older daughter, Beth Ann, was born in April, 1962; Susan was born in September, 1963. The parents were divorced in November, 1970, and in January, 1971, the mother was awarded custody of the two girls. She has retained custody, for the lower court’s awarding custody of Susan to the father, was stayed.

Since the divorce, the mother who does not work, has taken care of both girls, as well as taking care of her 19 year old daughter and 18 year old son from a previous marriage. The father has remarried, and he lives with his new wife, Judith, and her two children from a previous marriage. The father filed the petition for a change of custody only in regard to Susan. Two hearings were held on the petition.

At the first hearing, on January 6, 1976, the father testified that he filed the petition because Susan had expressed her desire to live with him. He explained that he had always had a closer relationship with Susan than with Beth Ann, and that Susan told him that she and her sister “get on one another’s nerves.” N.T.1 5.1 He had waited to file his petition until his new house was completed, so as to provide Susan with her own bedroom, and so that Susan could settle right into the new community without an additional move. His wife testified that she works 25 hours a week, and is never home later than 4:00 in the afternoon. N.T.1 14. The mother testified that the girls share a bedroom, and get along well. She claimed that the father creates the problem between the girls in that he caters to Susan, and that it was not until Susan heard about the new house that she started saying that she wanted to live with her father. The mother also claimed that the father had not exercised his visitation rights to the fullest. N.T.1 18-20. [199]*199Susan was questioned by the judge in chambers with counsel present, and stated that she liked where her father lives better than where her mother lives because it is “more open.” N.T.1 25-26.

At the second hearing, on June 18, 1976, the father explained that he would try to treat the girls equally in regard to material things, but that he found Beth Ann “a little flaky when it comes to something that is good for her.” N.T.2 4. When it was pointed out that if Susan were to live with him, he would see less of Beth Ann, the father admitted that he had not really thought about that. N.T.2 5-6. The mother testified that she had spoken to Susan to determine the basis of her desire to live with her father, but had been unable to elicit any explanation. She further testified that she worried that separation would lead to problems in the girls’ relationship. N.T.2 2-3. Susan was again questioned by the judge. Her entire statement was as follows:

Q. [THE JUDGE]: Do you like it in Lemoyne?
A. [SUSAN]: It is okay.
Q. You like to visit with your father?
A. What?
Q. You like to visit with your father?
A. Yes.
Q. You like it where he lives? You like to visit with him in the area where he lives?
A. Yes.
Q. Isn’t it a new house?
A. Yes.
Q. Do you want to go live with him?
A. Yes.
Q. You want to visit with your mother?
A. Yes.
Q. What’s your reason?
A. I like to be with my father.
Q. Do you have any activities in Lemoyne? School activities?
A. Nothing really.
[200]*200Q. You had good grades this year in school?
A. I guess so.
Q. Don’t you want to brag about them?
A. Not really.
Q. You would be satisfied to live with either of your parents wouldn’t you?
A. I want to live with my father.
Q. You would prefer that?
A. Yes.
Q. You still want to see your mother though, don’t you? A. Yes.
Q. You want to spend time with her?
A. Yes.
Q. And with your sister? How do you and your sister get along? Okay?
A. Not really.
Q. Many sisters don’t. She doesn’t do anything wrong does she?
A. She always teases me.
Q. All girls do that.
A. Yeah, but all the time?
Q. Do you swim?
A. Yes. . . .
MR. FOWLER [attorney for the father]: I am satisfied. You talked to her before. I do know that we have the burden of proof and Susan has expressed a desire to live with her father.
THE COURT: Is that correct?
A. Yes.
MR. FOWLER: I assume that you covered that in your questions?
THE COURT: I have but you may ask her.
MR. FOWLER:
Q. Susan, I know you love both your mother and your Dad and that’s not the question before the court or before us. Between living with your father and mother permanently who would you rather live with?
[201]*201A. My father.
Q. Are there any reasons why?
A. I want to be with my father.
Q. Is that a real strong feeling that you have?
A. I just want to live with my father.
N.T.2 10-11, 13.

A letter from a clinical psychologist, which was introduced into evidence, concluded that “[t]he two girls are quite independent and do not lean upon one another for emotional support, hence, I conclude that separating them would not be a traumatic experience for either one.”

The hearing judge filed a brief opinion (exclusive of the order concerning visitation rights, it consists of three pages) indicating that both the mother and the father’s second wife had undergone previous psychiatric therapy, and had both requested further psychiatric evaluations, but that he had decided that it was desirable that Susan’s custody be changed right away, to allow her to become acquainted with the new community before the start of school.

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Bluebook (online)
374 A.2d 1386, 248 Pa. Super. 196, 1977 Pa. Super. LEXIS 2048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomlinson-v-tomlinson-pasuperct-1977.