Commonwealth Ex Rel. Berman v. Berman

SPAETH, Judge:

This is a child custody case. We are all in agreement that the order of the lower court should be affirmed. Our only point of difference is regarding the standard of review that we should apply.

*93Judge HESTER says in his opinion that when the lower court has made a “penetrating and comprehensive inquiry into the facts,” and has filed “a comprehensive opinion containing its findings and conclusions,” its “decision will not be reversed absent an abuse of discretion.” At 1068. Judge CAVANAUGH and I believe that statement to be too broad.1

If the issue is whether we should reverse the lower court’s findings of fact, then indeed we must defer to the lower court, and reverse only where in making the findings the lower court has abused its discretion. This is so because the lower court saw the witnesses and is therefore much more able to appraise their credibility than we. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, “we are not bound by [the lower court’s] inferences or deductions . . . from the facts found.” In re Custody of Hernandez, supra, 249 Pa.Super. at 290, 376 A.2d at 656. Instead, “[w]e must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 296, 426 A.2d 555, 557 (1981) (emphasis added); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978). This is so because the scope of our review “in a child custody case is of the broadest type.” Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976).

An “abuse of discretion” occurs when the lower court’s “judgment ... is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . . ” Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). If we were bound to defer, not only to the lower court’s findings of fact but also its conclusions of law, except in a *94case of “abuse of discretion,” we should be unable to make the independent judgment we must make in child custody cases. Instead of being “of the broadest type,” our scope of review would be very narrow.

It is true that some of the cases support the formulation in Judge HESTER’s opinion. See, e. g., In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978) (in which I joined). It is nevertheless an inaccurate formulation, and we ought not to repeat it.

Of course, whenever we make an independent judgment, we take into careful account what the lower court has said. Certainly we will be influenced, and will often be persuaded, by the lower court’s conclusion as to what is in the child’s best interest. Child custody cases are extraordinarily difficult, and we have no special wisdom that enables us to know better than any one else what order “right and justice dictate.” Commonwealth ex rel. Pierce v. Pierce, supra. We must therefore draw on the wisdom of the lower court. In the end, however, the decision must be ours; that is what review “of the broadest type” means. Commonwealth ex rel. Spriggs v. Carson, supra. We cannot—should not—avoid or diminish our responsibility by saying that we will reverse only for “abuse of discretion.” In some cases, such as cases involving an order opening a judgment, or granting a new trial, or determining that a given weekly sum is fair support, such deference is appropriate. In child custody cases, it is not.

This much said, Judge CAVANAUGH and I join Judge HESTER’s statement of the case, which we cannot improve upon; it properly defers to the lower court’s appraisal of the witnesses, and then, taking the facts as found by the lower court, proceeds to consider the lower court’s conclusion that it is in Danny’s best interest to be with his father, even though it means that he and his sister will be separated. Judge HESTER does not say whether it is his independent judgment that the lower court’s conclusion was correct; he would affirm the lower court’s order because he finds no “abuse of discretion.” Judge CAVANAUGH and I *95affirm because, on the basis of the evidence, it is our independent judgment that the lower court’s order is in Danny’s best interest. While here it does not matter which standard of review is applied, in another case it may. It is therefore important that we be clear what we are doing.

AFFIRMED.

HESTER, J., files a concurring opinion.

. And see Judge HOFFMAN’S concurring opinions in In re: Jennifer Lynn Arnold, 286 Pa.Super. 171, 176, 428 A.2d 627, 629 (1981) (J. 47/81), and Commonwealth ex rel. E.H.T. v. R.E.T., Sr., 285 Pa.Super. 444, 458, 427 A.2d 1370, 1376 (1981) (J. 1906/79).