Opinion
June 15, 1962.
September 13, 1962.
Parent and Child — Custody of children — Modification of order to meet changed conditions — Evidence — Subsequent remarriage — Burden of proof on appeal.
1. In appeals in proceedings involving the custody of children, the burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law.
2. In this case, in which it appeared that the father filed a petition for modification of an order awarding custody of minor children to the mother and granting liberal visitation rights to the father, alleging that circumstances had changed and requesting that custody be awarded to him; that the court below dismissed the petition and reaffirmed its original order, subject to a slight modification in the visitation rights; and that essentially the only changed circumstance was that the father had subsequently remarried, and his new wife, who had been married previously, had two minor daughters who now resided with her in the father's home; it was Held that the father had entirely failed to demonstrate any compelling reason for modification of the original order.
Before RHODES, P.J., WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (ERVIN, J., absent).
Appeal, No. 180, Oct. T., 1962, from order of Court of Common Pleas of Montgomery County, No. 61-363, Habeas Corpus, in case of Commonwealth ex rel. Anne C. O'Hey v. John G. McCurdy. Order affirmed.
Proceeding upon petition of respondent to modify custody order as to minor children. Before HONEYMAN, J.
Order entered dismissing petition, with slight modifications in visitation rights. Respondent appealed.
Thomas B. Moreland Porter, Jr., with him Foulke, Knight Porter, for appellant.
William F. Fox, with him Fox, Differ, DiGiacomo Lowe, for appellee.
Argued June 15, 1962.
We are here concerned for the second time with a controversy between John G. McCurdy and Anne C. O'Hey, divorced parents, involving the custody of their minor children, presently aged thirteen, eleven, eight, and seven years. The case has a long procedural history, including two citations for contempt, and there is a voluminous record. By order dated February 8, 1961, the Court of Common Pleas of Montgomery County awarded custody to the mother, and granted liberal visitation rights to the father. An appeal by the father followed, and the order was affirmed. See Commonwealth ex rel. O'Hey v. McCurdy, 196 Pa. Super. 79, 173 A.2d 672, allocatur refused, 196 Pa. Super. xxix. On November 17, 1961, the father filed a petition for modification alleging "that circumstances relevant to the custody of the said children have changed", and requesting that custody be awarded to him. On January 2, 1962, the court below dismissed this petition and reaffirmed its original order, subject to a slight modification in the visitation rights. The father has again appealed.
The questions involved, as stated in appellant's brief, are concerned primarily with matters raised and passed upon in the first appeal, and do not warrant extended discussion. "To permit a party to relitigate a subject of relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation": Commonwealth ex rel. Crawford v. Crawford, 170 Pa. Super. 151, 84 A.2d 237.
The situation resulting in the original order of February 8, 1961, is set forth in the earlier opinion of Judge ERVIN, and need not be here restated. It is of course true that orders determining the custody of children are temporary in nature and subject to modification to meet changed conditions: Commonwealth v. Bishop, 185 Pa. Super. 362, 137 A.2d 822. We have accordingly made a painstaking review of the testimony on the two contempt citations and the petition for modification. Essentially, the only changed circumstance is that appellant subsequently remarried, April 22, 1961. His new wife had been married previously, and has two minor daughters who now reside with her in appellant's home. This is clearly not a sufficient basis for the requested change in custody. It should perhaps be noted that, before making the order of January 2, 1962, the hearing judge privately interviewed the four children who are the subjects of this dispute. In the words of Judge HONEYMAN: "The Court detected nothing from such interviews with the minors involved that would move the Court to change the basic custody in this proceeding".
According to appellant's brief: "These children were adopted by Mr. McCurdy by Decrees of the Orphans' Court of Montgomery County dated April 18, 1962".
In appeals of this nature, the burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law. Cf. Commonwealth ex rel. Heller v. Yellin, 174 Pa. Super. 292, 101 A.2d 452; Commonwealth ex rel. Lees v. Lees, 196 Pa. Super. 32, 173 A.2d 691. That burden has not been sustained in the case at bar. Appellant has entirely failed to demonstrate any compelling reason for modification of the original order. This matter has been accorded patient and thoughtful consideration in the court below over an extended period of time. We are all of the opinion that the existing custody status should not be disturbed.
Order affirmed.