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COMMONWEALTH EX REL. O'HEY v. MCCURDY (09/12/61)

September 12, 1961

COMMONWEALTH EX REL. O'HEY
v.
MCCURDY, APPELLANT.



Appeal, No. 161, Oct. T., 1961, from order of Court of Common Pleas of Montgomery County, No. 61-363, habeas corpus, in case of Commonwealth ex rel. Anne C. O'Hey v. John G. McCurdy. Order affirmed.

COUNSEL

Nochem S. Winnet, with him Thomas B. Moreland Porter, Jr., and Foulke, Knight & Porter, and Fox, Rothschild, O'Brien & Frankel, for appellant.

William F. Fox, with him Fox, Differ, DiGiacomo & Lowe, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 196 Pa. Super. Page 80]

OPINION BY ERVIN, J.

This appeal concerns a controversy between divorced parents over the custody of four of their five children.

By a decree dated February 8, 1961 custody was given to the mother with liberal visitation rights

[ 196 Pa. Super. Page 81]

(ninety-nine days per year) to the father. The parties were married August 7, 1948 and were divorced on July 10, 1960. There were five children born as a result of the marriage, viz., John McCurdy, Jr., 11 years of age; Anne McCurdy, 10 years of age; Edward McCurdy, 7 years of age; James McCurdy, 5 years of age; and David McCurdy, 18 months old. The four oldest children are the subjects of this proceeding brought by the mother.

On February 2, 1960 the mother removed from the marital domicile and on February 27, 1960 entered into a written separation agreement under which the youngest of the five children (David) was to remain in the custody of the mother and the other four children were to remain in the custody of the father.

The marital domicile was a five bedroom home in Wyndmoor, Montgomery County, Pennsylvania, and the father still maintains this as his residence. From the time of the separation of the parties until the order of the court below dated February 8, 1961, the four oldest children resided in said home with their father.

After the separation the mother and her youngest child lived with her brother for awhile and then in a one-bedroom apartment with a kitchen and dinette and a living room and bath. She had a separate income of about $2,000.00 a year. ...


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