Appeals, Nos. 201 and 202, March T., 1957, from order of Court of Common Pleas of Allegheny County, July T., 1953, No. 2532, and Jan. T., 1954, No. 1263, in cases of Ralph Cox, Jr. v. M. Lorraine Cox, and Commonwealth of Pennsylvania ex rel. M. Lorraine Cox v. Ralph W. E. Cox, Sr. et al. Order reversed.
James Lenahan, brown, with him Lee Paul Heid, for appellant.
James P. McArdle, James E. McLaughlin, and Ralph S. Sapp, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal from the Order of the Court of Common Pleas of Allegheny County, imposing upon the appellant, Dr. Ralph W. E. Cox, Jr. a fine of $1,000 and a sentence of imprisonment for a period of 90 days for contempt of Court.*fn1
Dr. Cox and his wife, M. Lorraine, were married May 16, 1951, the first marriage for Dr. Cox and the second marriage for Mrs. Cox. Unfortunately, their marriage was a failure and the marital domicile was maintained for approximately 15 months. However, during that time they had a child, Maureen Cox. Maureen is the basic cause of the proceedings which are now before us on appeal.
Mrs. Cox, on August 8, 1952, immediately after the parties separated, commenced separation proceedings against her husband, the appellant, in New York, alleging abandonment and non-support. On August 27, 1952, appellant took Maureen from New York to the home of his parents, Ralph W. E. Cox, Sr. and Letitia Cox, in Pittsburgh. Mrs. Cox then was awarded a Judgment of Separation by the Supreme Court of New York, and in that proceeding was awarded the custody of Maureen.
On the basis of this custody award, Mrs. Cox instituted habeas corpus proceedings in Allegheny County. The petition averred, inter alia, that Maureen was being illegally detained by the paternal grandparents of the child, and that the paternal grandparents had refused to give up the child to Mrs. Cox. On June 4, 1953, the trial Judge, without taking any testimony, awarded the custody of Maureen to Mrs. Cox on the basis of the New York custody order.
The grandparents then filed a petition to vacate the above order. A hearing was held sur this petition at which testimony was received from Harold Lovell, M.D. and Dr. Cox, the appellant. This testimony related to the fitness of the parents, with particular reference to the welfare of the child. Dr. Lovell, a psychiatrist, testified in substance that Mrs. Cox, who had been his patient for some time prior to the hearing, was a psychopathic personality and an alcoholic, and that in his opinion it was dangerous to permit Mrs. Cox to have custody of Maureen since she might harm or injure the child to spite Dr. Cox. Appellant also testified that Mrs. Cox was a chronic alcoholic, that she failed to properly take care of the child, and that it had always been necessary for him to employ nurses for the child while the child was with Mrs. Cox. The lower Court concluded that it had jurisdiction of
the matter since (1) the appellant had been a resident of Allegheny County during his lifetime, (2) the child had been a resident since August 28, 1952, (3) Mrs. Cox had submitted herself to the jurisdiction of the Allegheny County Court by virtue of the petition for habeas corpus wherein she appeared through counsel, and by reason of requesting a continuance for the present hearing, and (4) the Court had jurisdiction in all matters affecting the welfare of the child, Maureen. The trial Judge then vacated the Order of June 4, 1953, and awarded permanent custody of the child to her father, the appellant. Mrs. Cox ignored this Order of Judge WEISS and failed to deliver custody of Maureen to the appellant.
Finally, on October 29, 1954, all interested parties and their respective counsel entered into a stipulation covering various phases of the divorce litigation and the habeas corpus and custody proceedings. This stipulation was approved as a Consent Order by Judge WEISS. The stipulation and Order of the Court provided in pertinent part as follows:
"10. It is further agreed with the approval of this Court that, in consideration of this stipulation and order, the said Lorraine Cox shall have the temporary custody*fn2 of the said child during the pendency of these proceedings. [The custody rights of ...