Commonwealth ex rel. Hubbell v. Hubbell

Opinion by

Woodside, J.,

This appeal involves divorced parents, each desiring custody of two of their children. In such cases there usually is no solution to the problem; the court can only choose between unsatisfactory situations. So is it here.

The burden is on the appellant to establish that the order of the lower court is erroneous or based on a mistake of law: Com. ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 297, 101 A. 2d 452 (1953).

Any experienced trial judge, while conducting a hearing which involves the custody of children, is observing every act of the parties, not only to appraise the truth of their testimony, but also to evaluate their fitness to have custody of the children. An appellate court lacks this opportunity to pass upon the ability and character of the parties.

Judge Brbtherick is an experienced and able member of a trial court whose sympathy for children and interest in their welfare has often been demonstrated. His opinion sets forth the facts and the reasons for the court’s conclusion.

The appellant has not satisfied the majority of this court that the order of the lower court is erroneous or based on a mistake or law. We therefore affirm the order on the opinion of Judge Bretherick.