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COMMONWEALTH EX REL. MAGAZINER v. MAGAZINER (04/23/69)

decided: April 23, 1969.

COMMONWEALTH EX REL. MAGAZINER
v.
MAGAZINER, PETITIONER



Special certiorari to review proceedings in County Court of Philadelphia, Sept. T., 1967, No. 3254, in case of Commonwealth ex rel. Edith Braunstein Magaziner v. David A. Magaziner, Jr.

COUNSEL

Laurence H. Eldredge, for petitioner.

Sidney Ginsberg, for respondent.

Bell, C. J., Jones, Cohen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Justice Eagen took no part in the consideration or decision of this case. Opinion by Mr. Justice Jones Concurring in Part and Dissenting in Part.

Author: O'brien

[ 434 Pa. Page 2]

This is the culmination of a series of events in an unfortunate family squabble. David A. Magaziner, Jr. and Edith Braunstein Magaziner were married on April 19, 1950 and are the parents of three minor children. In 1967, the parties separated and in August

[ 434 Pa. Page 3]

    of that year Mrs. Magaziner commenced a divorce action. In September of 1967, Mrs. Magaziner filed two petitions in the County Court of Philadelphia. One petition was for a writ of habeas corpus, asking the court to award her custody of the children. The other sought support for the three children. The docket entries indicate that custody was awarded to Mrs. Magaziner on September 21, 1967. Support for the children was originally set, on December 14, 1967, at $150.00 per week. Then on January 18, 1968, the County Court, through Judge Bonnelly, issued the following order: "And Now, To Wit, this 18th day of January, 1968, in consideration of the attached agreement which has been filed by both parties, dated December 21, 1967, both parties being represented by counsel and an addendum dated January 17, 1968, it is Ordered that in accordance with said agreement and addendum, the husband is to pay the sum of one hundred dollars ($100.00) per week for the three children, said payments to be made through the Clerk of the Court, 1801 Vine Street. Said Order is to commence as of today. Any other Order heretofore entered is hereby vacated. The parties have agreed that the custody of the children be with the Mother, And It Is So Ordered.

"The parties have agreed as to visitation, and It Is So Ordered in accordance with the terms of the agreement. If, at any time, a violation of visitation order is shown to the Court, the Court shall immediately order a hearing."

Mrs. Magaziner obtained a final decree of divorce on February 17, 1968 and by deed dated February 15, 1968, title to premises 3024 Midvale Avenue, Philadelphia (the former home of the parties) was vested in Mr. Magaziner.

In May of 1968 a dispute arose concerning various personal items belonging to Mrs. Magaziner and the

[ 434 Pa. Page 4]

    children, and concerning her right to enter her husband's house to get the items. Although the exact factual matrix of the case is unclear and subject to dispute, certain facts appear of record. On May 2, 1968, Judge Bonnelly informed Mr. Magaziner's counsel, I. Raymond Kremer, by letter and perhaps also by telephone, that Mr. Magaziner had breached the agreement to permit Mrs. Magaziner to take the children's and her belongings from the house. The letter further stated: "I shall consider it a Contempt of Court if he fails to comply with the agreement. Mrs. Magaziner will call at ...


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