Nancy E.M. v. Kenneth D.M.
Nancy E.M. v. Kenneth D.M.
Opinion of the Court
This is an appeal from an order awarding custody of the parties’ minor sons, David and Kevin, to their father, Kenneth. The same order provides for continuing custody of the minor daughter Lisa with the mother, Nancy. Lisa’s custody is not the subject of this appeal. Visitation by Nancy with David is to be at David’s desire and visitation with Kevin is set at two six-hour visits per week “or more often if desired by the child.” David will be eighteen years old on August 19, 1983 and Kevin will be ten on September 19, 1983.
On appeal, Nancy asserts: (1) that the evidence is insufficient to justify an award of custody to Kenneth; (2) that it was error to limit her visitation with David to only those times when David desires; and (3) that the visitation with Kevin as set forth in the order is so restrictive as to be a virtual denial of visitation for which there is no justification. We affirm in part and reverse and remand in part.
This action was initiated on August 30, 1979, and the first hearing was held in June of 1980. The Honorable Lindley R. McClelland entered an order of custody which was appealed to this court. The matter was remanded for further evidentiary hearings which were held in June of 1982 before the Honorable Richard L. Nygaard. It is Judge Nygaard’s order which is the subject of the instant appeal.
It is well-settled that the sole issue to be decided in a custody proceeding is the best interest and welfare of the
In the instant case, our review of the record reveals more than sufficient evidence to support Judge Nygaard’s order as to primary custody. For the most part, the arguments contained in appellant’s brief are to the effect that the trial court should have accepted her testimony.
Appellant also complains of the restrictiveness of her visitation with both Kevin and David. Visitation with Kevin was set at two six-hour visits per week or more often if desired by the child and such can be arranged by the parents. Visitation with David was to be only as often as is desired by the child.
Visitation should be limited or denied only if the parent has been found to possess such severe mental or moral deficiencies as to constitute a grave threat to the welfare of the child. Commonwealth ex rel. Peterson v. Hayes, supra. The fact that the child does not want to see the parent is not sufficient reason to deny the parent visitation. Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973). However, the particulars of a visitation schedule is a matter best left to the discretion of the trial court. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978).
As to Kevin, therefore, we see no error in the court’s order of two six-hour periods per week, particularly since the court included a provision for further visitation if so desired. The order, therefore, is affirmed as to appellant’s visitation with Kevin.
As to David, however, we must agree with appellant that ordering visitation at the child’s desire is tantamount to denying appellant her visitation rights. Neither party has alleged, nor are we able to find, any evidence that visitation with David would constitute a grave threat to his welfare. In fact, one expert who testified at the 1982 hearing felt that some visitation was appropriate. Therefore, we must reverse that portion of the order pertaining to appellant’s visitation with David and remand for further proceedings consistent with this opinion.
Order affirmed as to custody of David M. and Kevin M., affirmed as to Nancy M.’s visitation with Kevin, reversed and remanded for further proceedings consistent with this opinion as to Nancy M.’s visitation with David M.
. Kenneth is the biological father only of Kevin. However, early in the marriage he adopted David and Lisa and so we treat him the same as if he were their biological father.
. The problems became so severe as to lead one expert to seriously consider foster home placement for the children.
. The dissent would have us remand this case yet another time for the filing of a comprehensive opinion by the trial judge. While we agree that the trial court’s opinion is not the comprehensive opinion envisioned by this court in In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979), we have the authority to consider the merits of a case if the record is sufficiently complete, even in the absence of a comprehensive opinion. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981).
. For example, appellant argues that the evidence shows that Kenneth will discourage the children from maintaining a relationship with their mother. Kenneth, on the other hand, testified that he in fact encouraged such a relationship.
. We recognize that any visitation order will be unenforceable once David turns 18 this August. However, because of the strong public policy against limiting the relationship between parent and child, In re
Dissenting Opinion
dissenting:
I respectfully dissent. I believe that the opinion of the lower court is far too inadequate to allow a proper review of the case and, accordingly, would remand the case for entry of a comprehensive opinion.
So as to facilitate our broad scope of review, we consistently emphasize that the lower court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); Garrity v. Garrity, supra [268 Pa.Super. 217, 407 A.2d 1323 (1979)]. The lower court’s opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which the judge reached his ultimate conclusion. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). The lower court’s opinion must also clearly demonstrate the necessity for placing custody with either the petitioner or respondent. Robert H.H. v. May L.H., supra [293 Pa.Super. 431, 439 A.2d 187 (1981)].
Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 245, 447 A.2d 630, 633 (1982).
If the above requirements are not met, the order of the lower court must be reversed and remanded. Jones v.
The majority states that “[tjhere was more than sufficient evidence presented to warrant the trial judge in finding that Kenneth is fulfilling his parental role insofar as the children’s schooling, religious training, and everyday care is concerned.” While I do not disagree that there indeed may have been sufficient evidence for the trial judge to so conclude, I find the problem to be that the trial judge made no such express finding, nor even discussed the subject.
Likewise, the majority states that while appellant argues that the trial court should have accepted her testimony, the decision of what testimony to believe must be left to the trial judge. However, I find that we have been offered
Therefore, I conclude that I must agree with the court in In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979), which stated the following:
While we might review the record and reach a conclusion without the benefit of a proper analysis by the lower court, such a course would serve neither the best interests of the children nor the Commonwealth. We are loath to pass judgment on something as precious and intrinsically valuable as a child’s welfare without every possible piece of information bearing on the subject. It is for this reason that we demand a full record and a probing analysis thereof. Instantly, the opinion we are presented with renders it impossible to effect a just result.
Id., 270 Pa.Superior Ct. at 170, 411 A.2d at 234.
Thus, I would remand for entry of a comprehensive opinion.
. In some cases where the lower court has failed to file a proper opinion in support of its custody decision, we have not remanded the case, but instead decided the question of custody based upon our own examination of the record. See Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979); Tomlinson v. Tomlinson, 248 Pa.Super.Ct. 196, 204, 374 A.2d 1386, 1390 (1977); Sweeney v. Sweeney, 241 Pa.Super. 235, 361 A.2d 302 (1976). Such cases are rare, however, and the usual course is to remand the case to permit the lower court to receive further evidence, if that is indicated, and to file a more comprehensive opinion setting forth its reasons, including its findings as to the credibility of the witnesses and the weight to be attached to the testimony. See Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); Lewis v. Lewis, 271 Pa.Super. 519, 414 A.2d 375 (1979).
Commonwealth ex rel. Crowther v. Waida, 272 Pa.Super. 73, 75, 414 A.2d 675, 676 (1979); see McAnallen v. McAnallen, 300 Pa.Super. 406, 446 A.2d 918 (1982) (merits considered despite inadequate lower court opinion where record was comprehensive and essential facts not in dispute).
Reference
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- NANCY E.M., Appellant, v. KENNETH D.M.
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