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BROCKER v. BROCKER (03/15/68)

decided: March 15, 1968.

BROCKER, APPELLANT,
v.
BROCKER



Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1962, No. 77, in case of Robert J. Brocker v. Mary Ann Brocker.

COUNSEL

Harvey E. Schauffler, Jr., for appellant.

Norman D. Jaffe, with him Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.

Author: Bell

[ 429 Pa. Page 515]

This is an appeal from a contempt Order issued by the Court of Common Pleas of Butler County, Pennsylvania. The Order held Dr. Brocker, the appellant, to be in contempt of Court for failure to comply with and obey its Custody Order of June 18, 1965, requiring Brocker to return his minor children to their mother at the end of a summer visitation period. This case has been rendered difficult because, inter alia, of the many diverse and offsetting motions by each of the parties, the sequence of events, and the material differences between Brocker's two counsel.

[ 429 Pa. Page 516]

The Facts

Dr. and Mrs. Brocker were divorced by the Court of Common Pleas of Butler County on October 15, 1964. At that time Mrs. Brocker was a resident of and was domiciled in Butler County, and Dr. Brocker was a resident of Ohio. The Order granting the divorce incorporated the written agreement of the parties for the custody and support of their six minor children. It pertinently provided: "Wife shall have the custody, care and charge of all the children of the parties herein in accordance with the existing Orders of the Common Pleas Court of Butler County, Pennsylvania, or as they shall be changed or amended from time to time; and for this purpose the parties herein agree and submit themselves to the continuing jurisdiction of the Common Pleas Court of Butler County, Pennsylvania, which Court shall have jurisdiction over all matters relating to the custody of said minor children, regardless of the residence or domicile of the parties herein or their children, outside the geographic jurisdiction of said court."*fn*

The aforesaid Order of the Butler County Court dated October 15, 1964 was amended by it on June 18, 1965, sur the Petition of Dr. Brocker (the father and husband), to provide that the Father (who is the present appellant) shall have custody of the six children during the summer vacation periods, commencing on the fifth day after the end of the spring school term and ending five days prior to the beginning of the fall term.

In accordance with this Amended Order, the children were delivered to the Father five days after the end of the spring school term, to spend the summer at

[ 429 Pa. Page 517]

    his residence in Ohio. At the end of the summer vacation period, the Father failed to return the children to their Mother (who continued to live in Butler County, Pennsylvania), as required by the aforesaid Amended Order of the Court.

On August 10, 1966, the Father presented to the Court of Common Pleas of Butler County a Petition for modification of that Court's aforesaid Amended Custody Order. His Petition alleged the unfitness of the Mother and prayed that permanent custody of the children be awarded to him. The Court thereupon issued a Rule upon the Mother to show cause why permanent custody of the children should not be given to the Father, and a guardian ad litem was appointed by the Court to represent the rights, interests and welfare of the children. The Rule was returnable October 11, 1966, which would have been more than a month after the children should have been returned to their Mother, i.e., five days prior to the beginning of the fall term of the new school year. The record then impliedly indicates that on August 25, 1966, Dr. Brocker instituted proceedings in the State of Ohio for the custody of the children; the record does not disclose whether the Mother appeared in said action either personally or through counsel, or what, if any, action was taken by the Ohio Court.

On August 12, 1966 (prior to Dr. Brocker's above-mentioned custody suit in Ohio on August 25), the Mother filed a Petition with the Butler County Court (1) praying that her former husband be held in contempt for failure to pay support for their children as required by the Order of that Court, and (2) praying for an increase in the Court's original Support Order. A Rule to show cause was issued on Brocker and a hearing was held on August 30, 1966, at which Dr. Brocker's Butler County attorney Gilchrist entered his

[ 429 Pa. Page 518]

    appearance. During the course of this hearing, counsel for the Mother presented another Petition to that Court praying that Brocker be held in contempt for his failure to return the children to her on August 25, 1966 pursuant to the aforesaid Amended Custody Order of the Butler County Court, and that an attachment issue.

On August 31, after the conclusion of this hearing, the Butler County Court modified its Support Order by increasing the amount of support to $150 a month for each child. The next day, September 1, 1966, that Court issued a Rule on Dr. Brocker to show cause why he should not be held in contempt for failure to return their children to their Mother. This Rule was returnable on the afternoon of the following day, namely September 2nd. The Court obviously was concerned about having the children returned to the Mother in time for the new school year, and this occasioned the prompt scheduling of a hearing. While the record is not clear as to exactly what happened thereafter, the Court continued the hearing on the Rule until Tuesday, September 6, at 4:00 P.M. However, neither Brocker nor his counsel appeared at the hearing on September 6. The Court thereupon entered a Contempt Order which (1) assessed a penalty against Brocker in the amount of $25,000 payable to the County, and (2) provided for commitment of Brocker to prison pending compliance, and (3) further provided: " The penalty is hereby remitted if the defendant purges himself of his contempt by obedience to the orders of this Court within five days from this date [September 6, 1966]." From this Contempt Order, Brocker took this appeal.

Contempt

In order to properly evaluate appellant's contentions, it is necessary to briefly review the law with

[ 429 Pa. Page 519]

    respect to contempt and its divisions, which are sometimes obscure.

The Courts have always possessed the inherent power to enforce their Orders and Decrees by imposing penalties and sanctions for failure to obey or comply therewith. Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270; Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669; Michaelson v. United States, 266 U.S. 42; Green v. United States, 356 U.S. 165; United States v. United Mine Workers of America, 330 U.S. 258; Commonwealth ex rel. v. Perkins, 124 Pa. 36, 16 Atl. 525; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa. Superior Ct. 7, 174 Atl. 11; Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 157 Atl. 27.

Contempt is divided legally into two classes: (1) Civil Contempt and (2) Criminal Contempt, (a) direct contempt and (b) indirect contempt. Knaus v. Knaus, 387 Pa., supra; Philadelphia Marine Trade Assn. v. International Longshoremen's Assn., 392 Pa. 500, 140 A.2d 814; Commonwealth ex rel. Beghian v. Beghian, 408 Pa., supra; Marco Industries, Inc. v. United Steelworkers of America, 401 Pa. 299, 164 A.2d 205.

The dominant purpose and objective of the Court's Order is the controlling factor in the determination of whether the contempt was civil or criminal. Not only is the dividing line between civil and criminal contempt sometimes shadowy or obscure, but the same facts or conduct may constitute or amount to both civil and criminal contempt. United States v. United Mine Workers of America, 330 U.S., supra. Moreover, it is clear that a Court can for present or past acts of misbehavior amounting to ...


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