Appeal, No. 129, Oct. T., 1960, from order of Municipal Court of Philadelphia, Feb. T., 1957, No. 9243, No. 202157, in case of Commonwealth ex rel. Ruth Levinson v. Arthur Levinson. Appeal dismissed.
Morris Wolf, with him Louis M. Cohen, and Wolf, Block, Schorr and Solis-Cohen, for appellant.
Kenneth Syken, with him B. Nathaniel Richter, and Richter, Lord and Levy, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
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This appeal was filed purportedly to obtain in limine a review of a jurisdictional question under the
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provisions of the Act of March 5, 1925, P.L. 23, 12 P.S. section 672 et seq. Subsequent to the filing of the appeal, a motion to quash and an answer thereto were filed. We shall dispose of this motion.
The proceedings in the court below arose from a dispute between the parties over custody of their minor daughter. In February, 1957, during the pendency of a divorce action instituted by Arthur Levinson, appellant, a stipulation was entered into between him and his wife, Ruth Levinson, appellee, with respect to the custody of their child. This stipulation was approved by the court below on February 6, 1957, and by its terms appellant had custody of the child for nine months and appellee three months of each year. This divided custody did not work out, and appellant filed a petition against appellee for attachment for contempt, alleging violation of the court-approved stipulation by abducting the child from appellant's home in Massachusetts during the time the child resided with appellant. An answer was filed to this petition and the court took testimony to resolve this issue. During the course of hearings on this petition, appellee filed a petition for writ of habeas corpus to obtain custody of the child. An answer was filed to this petition in which the material allegations were denied. The court took testimony on this issue, also, and while objection was registered to the court's proceeding with a custody hearing, no petition was filed to raise properly the question of jurisdiction.
On July 25, 1959, Judge HERBERT E. MILLEN, who heard these proceedings, died without adjudicating these matters. On October 1, 1959, appellant filed a petition for leave to withdraw the petition for attachment for contempt and for dismissal of the petition for custody. In this petition, the question of jurisdiction over custody was raised formally for the first time. A
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rule to show cause was entered and on October 14, 1959, an answer was filed by appellee. On November 13, 1959, President Judge BONNELLY ordered that "the entire record should be referred to one of our colleagues to carefully study the same, take additional testimony if required, and file his adjudication as the facts and the law dictate." Pursuant to this order, Judge EMANUEL W. BELOFF filed an opinion in which the petition for leave to withdraw the petition for attachment for contempt and to dismiss the ...