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COMMONWEALTH EX REL. SHAMENEK v. ALLEN (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. SHAMENEK, APPELLANT
v.
ALLEN



Appeal, No. 1, March T., 1956, from order of Court of Common Pleas of Dauphin County, Sept. T., 1953, No. 150, in case of Commonwealth of Pennsylvania ex rel. Joseph S. Shamenek v. Charles Allen et ux. Order affirmed.

COUNSEL

Richard W. Cleckner, with him Joseph Nissley and Livengood & Nissley, for appellant.

I. Emanuel Meyers, with him Benjamin L. Levi and Hurwitz, Klein, Meyers & Benjamin, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 179 Pa. Super. Page 170]

OPINION BY ERVIN, J.

This is a habeas corpus proceeding in which the father (relator) seeks the custody of his 12-year old daughter, Joanne Shamenek, from Charles Allen and his wife, Evelyn Allen, Joanne's maternal aunt (respondents). The lower court awarded custody to the respondents with visitation rights to the relator.

The relator, who is now approximately 46 years of age, and Anna May Monismith were married in Harrisburg, Pennsylvania, on December 6, 1941. Shortly thereafter they went to Bethlehem, Pennsylvania, to

[ 179 Pa. Super. Page 171]

    live, where the relator was then and still is employed by the Bethlehem Steel Company. His annual income is now approximately $4,000.00. Their only child, Joanne, was born March 18, 1943. Differences developed between the parents and they separated for several months in 1947, the mother taking Joanne to live with her in or near Harrisburg with certain members of her family. The final separation occurred in July 1950, the mother taking Joanne to live with her in an apartment in Allentown, Pennsylvania. The relator, after the separation, lived with his sister, Mrs. Carlton Kresge, in Bethlehem. In September 1950 the relator brought a habeas corpus action against his wife in the Court of Common Pleas of Lehigh County to obtain the custody of Joanne. After a hearing held thereon a stipulation was entered into between the parties, approved by the court on October 24, 1950, whereunder Joanne's custody was given to her mother with visitation rights to the relator. At this time, when the child was approximately seven and one-half years old, she had already developed an antipathy toward her father, because when he approached her during a recess in the hearing and started to take hold of her "she screamed and got white as a sheet." The relator exercised his rights of visitation until June 1953 when Joanne refused to accompany her father when he came to his wife's home for her. For some time prior to June 1953 the child did not wish to see the relator and unwillingly went with him only because her mother told her she should go. The mother instituted a divorce action against the relator in the Court of Common Pleas of Lehigh County and at the first hearing held on July 1, 1953 the mother testified in chief but the hearing terminated before her cross-examination had been completed. At this hearing the mother testified that the relator was suspicious of her conduct

[ 179 Pa. Super. Page 172]

    with other men, falsely accused her of infidelity, used physical violence toward her, at times in the presence of Joanne, and also threatened to kill her. When confronted with these accusations in the present habeas corpus proceeding, the relator denied the accusations except that he did admit having a little squabble with his wife in 1944, at which time he told her "if she ever took the child [Joanne] from me I would kill her." On August 1, 1953 the mother flew to Winter Haven, Fla. for a rest, suffered a heart attack upon arrival and died. On August 2, 1953 Joanne was taken to the home of the respondents at 718 South 25th Street, Harrisburg, at her own request and she has lived with them ever since. On August 3, 1953 the relator came to the respondents' home to get his daughter. Joanne ran upstairs, then came down crying and trembling and refused to go with her father. The relator then instituted this habeas corpus proceeding in the Court of Common Pleas of Dauphin County.

The relator has not remarried. He is now living with his sister, Mrs. Kresge, and her husband and their two children - boys 12 and 8 years of age - at 634 High Street in Bethlehem. This is an adequate home and the one to which Joanne would be taken if the relator is awarded custody. On the other hand, the Allens own a modern home consisting of six rooms and bath with a playroom in the basement, situate in a good residential neighborhood, on a corner lot 50 x 150 feet. The household consists of Mr. and Mrs. Allen, respectively 42 and 40 years of age, and a son, Charles, Jr., 7 years of age. Mr. Allen is employed by the Boyertown Casket Company as an engraver and order clerk at an annual salary of ...


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