Commonwealth ex rel. Holschuh v. Holland-Moritz , 1972 Pa. LEXIS 475 ( 1972 )

Dissenting Opinion by

Me. Justice Bobeets:

I dissent. I believe the trial court’s finding that “the welfare of the children demands that their mother have custody” was fully supported by sufficient and competent evidence. In reversing that finding' of fact the Superior Court clearly intruded upon the province of the fact-finder and exceeded the proper scope of appellate review.

I am unpersuaded by the majority’s attempt to characterize the Superior Court’s direct invasion of the fact-finding province of the trial court as merely the drawing of different “deductions and conclusions of law” from appellant’s promise of “reformation”. What the majority ignores is the fact that appellant’s promise of “reformation” was merely part of all the evidence that the trial court properly considered in making its finding. The weight and effect to be accorded the mother’s testimony, as well as all the testimony iu the case, was clearly for the fact-finder—here the hearing court.

In light of the trial court’s finding, firmly supported by this record, that appellant should have custody of her children, I see no reason to prolong this matter by remanding for a further hearing on issues which have been completely reviewed and properly determined by the trial court. To remand is only to unnecessarily burden the judicial process with its added costs to all concerned and to further delay the finality of this litigation. The record here does not require a remand— it compels instead that this case come to an end. I would therefore reverse the Superior Court and affirm the trial court’s order granting custody of the children to the mother.

Mr. Justice Nix and Mr. Justice Manderino join in this dissent.