Commonwealth ex rel. E. H. T. v. R. E. T. , 285 Pa. Super. 444 ( 1981 )

HOFFMAN, Judge,

concurring:

Although I concur fully in the judgment of the Court, I write separately to address what I consider to be an inconsistency in the majority’s articulation of our scope of review in cases such as this.

Unquestionably, we are presented with no more important class of cases than those which involve the custody of children. Accordingly, our courts have consistently stated that “[t]he scope of [appellate] 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); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978).” Garrity v. Garrity, 268 Pa.Super. 217, 220, 407 A.2d 1323, 1325 (1979). See also Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). Moreover, in reviewing custody cases, “[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, supra, 493 Pa. at 296, 426 A.2d at 557 (emphasis added).

While acknowledging our obligation “to exercise the broadest scope of review,” the majority nevertheless goes on to state that we will defer to the hearing judge’s determination of custody “absent an abuse of discretion, if the judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion.” At 1372 (emphasis added). Although this latter statement of our review procedure is not without support in the case law,¹ I believe that employment of an “abuse of discretion” standard is wholly at odds with the broad scope of review and independent judgment which our cases command we perform and which such sensitive subject matter merits. In Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934), our Supreme Court defined “abuse of discretion” as follows:

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.

Id., 317 Pa. at 93-94, 176 A. at 237. See also Brown & Bigelow v. Borish, 165 Pa.Super. 308, 310, 67 A.2d 823, 825 (1949). In Commonwealth ex rel. McQuiddy v. McQuiddy, 288 Pa.Super. 390, 358 A.2d 102 (1976), this Court stated that

[w]hen the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.

Id., 238 Pa.Super. at 393-94, 358 A.2d at 104 (quotations omitted). Thus, if we are indeed to review a custody order pursuant to the “abuse of discretion” standard, then we may not disturb that order unless the appellant meets the “heavy burden” of convincing us that the lower court ignored or misapplied the law, exercised a manifestly unreasonable judgment, or acted out of partiality, prejudice, bias, or ill-will. This minimally exacting level of appellate scrutiny, while proper in other contexts,² is manifestly inappropriate in cases in which our scope of review purports to be of the broadest type. Accordingly, I believe that it is time for us to disavow a standard which is inconsistent with both our responsibility and our actual practice of closely scrutinizing custody decisions.³

1 . Indeed, the opinion which the majority cites for the proposition (Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 296 A.2d 838 (1972)) was authored by this writer. See also Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); McCourt v. Meyers, 268 Pa.Super. 152, 407 A.2d 875 (1979); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977); Commonwealth ex rel. Mazza v. Sarvice, 227 Pa.Super. 38, 323 A.2d 41 (1974).

2 . See, e. g., McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Goldstein v. Graduate Hospital of the University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971) (petitions to open judgments); Commonwealth ex rel. McQuiddy v. McQuiddy, supra (support); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978) (sentencing).

3 . I hasten to add that by these comments I do not purport to challenge existing law which requires us to defer to findings of fact which are supported in the record. See, e. g., In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973); Commonwealth ex rel. Gifford v. Miller, 213 Pa.Super. 269, 248 A.2d 63 (1968). Such deference is a necessary consequence of the hearing judge’s superior opportunity to view witnesses and weigh credibility. Despite our obligation to defer to the lower court’s findings of fact, however, “we are not bound by inferences or deductions made by the hearing judge from the facts found.” In re Custody of Hernandez, supra, 249 Pa.Super. at 290, 376 A.2d at 656. See also Garrity v. Garrity, supra; Sipe v. Shaffer, supra. Our freedom and obligation to draw independent inferences, deductions, and conclusions from the facts as found is but a further example of the incongruity of stating our standard of review in terms of “abuse of discretion.”