Watters v. Watters

*968MONTEMURO, J.:

¶ 1 This is an appeal from an order transferring primary custody of the parties’ son from Appellant to Appellee.

¶ 2 The parties to this action were married in March of 1985, and their children, Brittany and Donald III, were born in 1986 and 1989 respectively. In February of 1999, the parties separated when Appel-lee moved out of the upper floor of the marital residence and installed himself in the basement. From that point, the schism between the parents repeated itself in the children. Brittany, already somewhat distant from Appellee, became openly hostile to him, while Donald III blamed Appellant for the problems in the marriage, and began to spend all of his time in the basement with Appellee.

¶ 3 In April of 1999, Appellee left the marital residence under order of court, and began residing nearby with his parents where he has remained. A temporary custody order entered in May of 1999 awarded primary custody of both children to Appellant with liberal partial custody in Appellee. Since that point, Brittany has become completely estranged from Appel-lee, refusing even to speak to him, and the antagonism displayed by Donald III to Appellant has continued largely unabated. The court-appointed psychologist who interviewed both parties and the children several times in preparation for the hearing on Appellee’s petition to modify the original custody order, concluded that these attitudes are encouraged by the parties, whose manipulation of the children has served to solidify Brittany’s resentment and Donald Ill’s intransigence.

¶ 4 After two days of hearings, the trial court entered the instant order, awarding primary custody of Donald III to Appellee with substantial partial custody to Appellant, and custody of Brittany to Appellant. This appeal followed, alleging as an abuse of discretion only the latter portion of the order.

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrov'ertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992) (citations omitted).

It is the paramount concern of the reviewing court, as it should be for the trial court, to insure that the best interests of the child are served by whatever decision is reached. Id.

¶ 5 The trial court, relying heavily on the recommendations of the courtappoint-ed psychologist, determined that Donald Ill’s best interests lay with awarding his custody to Appellee because otherwise “the probability of behavioral and emotional problems would increase.” (Trial Ct. Op. at 6). The court goes on to say that although Appellant has testified to a noticeable improvement in the boy’s behavior toward her since Appellee has left the marital residence, Donald III “continues to desire to please his father.” (Id.) While the court correctly notes that weight of evidence and credibility of witnesses is a matter for its discretion, and that it may consider uncontradicted expert testimony, Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986), our Supreme Court has observed, albeit in an entirely different context, the general rule with regard to expert opinion in the Commonwealth: it is *969not conclusive and is to be considered only in conjunction with all the other evidence presented. Smith v. Shaffer, 511 Pa. 421, 426, 515 A.2d 527, 529 (1986). In this instance, however, we find no abuse of discretion in the conclusions drawn by the court from the evidence before it, including that provided by the expert.

¶ 6 The trial court’s rationale for the award is its disinclination to place blame for “causing or promoting conflict between the parties and the children,” but rather to “deal with circumstances as they exist.” (Trial Ct. Op. at 10). The court, in fact, observes that Appellant has “no specific shortcomings that would necessitate a change in custody, and it appears ... that Mother has been dedicated to the children and is an exemplary homemaker.” (Id. at 10). It is, however, the court’s burden in custody matters to extrapolate from existing conditions a schedule of custody and visitation which serves the child’s best interests. Where, as here, the child’s mental state is threatened by his current custody situation, and his stability is largely dependent upon the presence of one parent rather than the other, the child belongs where his emotional equilibrium may be maintained if not actually improved. Indeed, Donald III testified that were he to be placed in Appellee’s primary custody, it would be, “just the happiest thing of my life.” (N.T., 9/30/99, at 102).

¶ 7 Although a child’s wishes are important, they are not controlling in custody matters, and the child’s preference, to be given credence, must be based on reasons which comport with his best interests, whether or not he is able to identify them as such. McMillen, supra. Donald III gave as his reasons the various activities he shares with Appellee, particularly sports and outdoor pursuits, his improved performance on tests resulting from Appellee’s superior assistance with school work, and his affection for his paternal grandparents. Donald Ill’s encomium on Appellee’s virtues, his continual expression of love for and admiration of Appellee, was in stark contradistinction to the tremendous animosity and hatred the boy expressed toward Appellant, and reflects the quality of his relationship with her, that is, predominantly negative; Donald III views her as, at best, uninterested in him or his concerns to the point of neglect, and entirely culpable in the dissolution of the marriage. Given this state of the child’s feelings, which informs his conduct, Appellant cannot offer the prospect of any actual advantage to Donald III to be gained from his continuing in her primary care. Nor can she assure that the deterioration in the boy’s behavior and emotional state which the court sought to avoid by means of the revised custody arrangement would not occur. Even if Donald Ill’s behavior toward Appellant has improved, his feelings about her, as freely expressed both to others and to Appellant herself, have not. The child’s best interests will not be served by requiring that he remain primarily in the company of a person whom he professes to loathe, and whom he believes, whether or not accurately, to care little for him, and to be solely responsible for the family’s dissolution. The court, faced with the demonstrable benefits Donald III derives from his relationship with Appellee and the opportunity provided by that environment for Donald III to flourish, correctly concluded that it would be “more harmful” to force the child to remain in Appellant’s primary care.

¶ 8 Appellant also directs us to the policy of this Commonwealth that, where possible, siblings should be raised together absent “compelling reasons” to do otherwise. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59, 60 (1985). In examining the meaning of the term compelling reasons, this Court asked a question pertinent here, that is, “did the evidence indicate that it was ‘necessary’ to separate the children, was the evidence ‘forceful’ in this regard, or was it, in other words, ‘compelling.’ ” Id. However, this policy is a consideration in rather than a determinant of custody arrangements, Wiskoski v. Wiskoski, 427 *970Pa.Super. 531, 629 A.2d 996 (1993), and we find that the reasons advanced for the separation here are indeed compelling.

¶ 9 In discussing Donald Ill’s relationship with his sister, the court concludes that despite their fondness for each other they are not extremely close, but between a liberal partial custody schedule and proximity at school they will have opportunities to continue the relationship. In fact, there are substantial possibilities inherent in the contact provided by partial custody for amendment of Donald Ill’s current attitude toward Appellant. Further, we reiterate that his remaining in Appellant’s care while he harbors such intensely negative feelings for her is not conducive to his well-being. If, however, Donald III is permitted the custody situation he desires, his contentment there may to some extent ameliorate his antipathy to Appellant; concomitantly, his relationship to his sister, distant rather than negative, may also benefit. Thus we find the reasons to separate the children compelling, while the rationale for keeping them together is less than persuasive.

¶ 10 This is, as the trial court correctly observes, a tragic situation. Out of the conflict in this family, the court has fashioned a situation for Donald III which allows him the best chance for happy and productive development. We find no error in the court’s decision.

¶ 11 Having said so much, however, we are compelled to express concern lest our affirmation of the trial court’s order be seen as condonation or tacit approval of Appellee’s part in the formulation of Donald Ill’s attitude. Rather, we deplore the fact that parental authority, particularly where, as here, Donald Ill’s affection for Appellee amounts to hero worship, is used for such destructive and pernicious ends. The trial court, although struggling to remain aloof from allocation of blame, conceded the possibility that Donald III might well have been “heavily influenced” by Ap-pellee and his parents. The court’s order contains a provision directing the parties to participate in counseling, clearly to address behavioral issues for the adults as well as for the children involved in this unhappy situation. We strongly approve the entry of this directive.

¶ 12 Order affirmed.

¶ 13 Dissenting Opinion by ORIE MELVIN, J.