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COMMONWEALTH EX REL. LOTZ v. LOTZ (12/09/58)

December 9, 1958

COMMONWEALTH EX REL. LOTZ
v.
LOTZ, APPELLANT.



Appeal, No. 207, Oct. T., 1958, from order of Court of Common Pleas of Schuylkill County, March T., 1948, No. 260, in case of Commonwealth ex rel. Edward Lotz v. Betty Lotz. Order affirmed.

COUNSEL

Tom P. Monteverde, with him Elwyn Jones, Josephine H. Klein, and Schnader, Harrison, Segal & Lewis, for appellant.

Cletus C. Kilker, for appellee.

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

Author: Woodside

[ 188 Pa. Super. Page 242]

OPINION BY WOODSIDE, J.

This is an appeal from the Order of the Court of Common Pleas of Schuylkill County, entered in a custody proceeding on February 10, 1958, and amended March 10, 1958.

The portion of the Order appealed from read: "At the above-stated times, so fixed, the mother, Betty Lotz, shall deliver the child to the father or may permit the child to go to the home of the father alone if the circumstances permit and warrant."

[ 188 Pa. Super. Page 243]

Upon the refusal of the child, Elizabeth Ann Lotz, to visit her father following the order of February 10, the above-quoted portion of the Order was amended as follows: "At the above-stated times, so fixed, the mother, Betty Lotz, shall deliver the child to the father. The father shall return the child to her mother at her home at the conclusion of the several visitation periods." Counsel for the mother, appellant herein, then asked the court whether the amendment meant that "if the child refuses to go that the respondent shall exercise her parental authority to compel her to go by delivering the child at the home", to which the Court replied: "That's correct." The mother contends that the court below was in error in requiring the mother to compel Elizabeth Ann to visit her father. The girl is now thirteen years of age and has been the subject of continual litigation since March of 1948. The conduct of both parties in regard to the various orders for visitation which have been entered throughout the years has been less than admirable.

The last time that the child visited her father was February 23, 1957. During the evening of that visit, a disagreement occurred between them in which it can be determined from the varying stories of the occurrence that the father struck the child and that the child kicked her father and threw newspapers and davenport pillows onto the floor. Thereafter, Elizabeth Ann refused to visit her father at the times ordered for visitation by the court.

The court below properly concluded that "Even though we should accept the child's version of the events of February 23, 1957, it is not of such a serious nature that it should work a ...


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