Appeal, No. 338, Oct, .t., 1962, from order of Court of Common Pleas of Lebanon County, Dec. T., 1961, No. 96, in case of Commonwealth ex rel. Cynthia Beemer et al. v. Jeanne E. Beember. Appeal quashed.
Allen H. Krause, for appellant.
Philip S. Davis, with him Davis & Katz, for appellee.
Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 104]
This is an appeal from an order of the Court of Common Pleas of Lebanon County, in a habeas corpus action, by which the custody of Cynthia Beemer, age fourteen, at the time, and Michael Beemer, age nine, at the time, minor children of Richard L. Beemer, the relator, and Jeanne E. Beemer, his wife, the respondent, was awarded to the father relator, Richard L. Beemer.
The parties to the proceedings were married on August 24, 1946, in Chicago, Illinois. They resided together at various places from 1946 to 1959. For several years they resided in a home owned by them as tenants by the entirety in Palmyra, Pennsylvania. While living there, on October 4, 1959, as a result of marital difficulties, including the wife's interest in another man, she moved to Chicago, Illinois, taking the children with her. The children became homesick and the father was asked to come and get them and about Christmas 1959 they were returned to Palmyra where they lived for twenty months with their father. In September, 1961 the mother returned to Palmyra but only lived in the family home for a few weeks, when she left with the children to live in a nearby motel. The father continued to reside in the family home and tried to persuade the wife and children to return to live with him. His wife refused. This petition followed on October 3, 1961. After the hearings on the
[ 200 Pa. Super. Page 105]
petition, and prior to decision, she returned to Chicago, Illinois, with the children on or about March 5, 1962 without permission of the court, and in defiance of the continuing writ of habeas corpus.
On April 12, 1962, the court's order directed that the custody of the two children be awarded to the father. It further provided for visitation rights to be exercised by the wife in Palmyra, Pennsylvania; and further provided that the children were not to be removed from the jurisdiction without leave of court. The order further provided that the order should not take effect until one week after the school term was completed in Chicago, where the mother had placed them in school. The school term ended June 22, 1962 so that the order for the return of the children to Palmyra was effective on June 26, 1962. The children still reside with the mother in Chicago, Illinois.
Subsequent to this appeal, in July of 1962, a petition to strike off or to quash the appeal was filed by the relator-appellee on the ground that the appellant had failed to comply with the order of court awarding custody of the children; that in violation thereof took the children out of the jurisdiction; and despite the order of the court below directing the return of the children to the husband in Palmyra on June 29, 1962, continued to defy the order of the court below by maintaining custody of them in Chicago. She did this, although stating in writing: "I thoroughly understand that the children are and will remain under the jurisdiction of this court, when a decision is finally reached, - and if it is an adverse one for me I know that I must return them." No supersedeas was ever asked for. At the oral argument before this Court counsel for the ...