Appeal from order of Court of Common Pleas of Montgomery County, No. 73-08138, in case of Frances Gay Davidyan v. Gail Kurt Davidyan.
Nathan L. Posner, with him Howard R. Flaxman, and Fox, Rothschild, O'Brien & Frankel, for appellant.
Arthur R. Littleton, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Cercone, J., concurs in the result. Dissenting Opinion by Hoffman, J.
[ 230 Pa. Super. Page 601]
Frances Gay Davidyan, appellee, on July 5, 1973, filed a petition for a writ of habeas corpus seeking custody of her seven year old son, Nicholas Gail Christie Davidyan.*fn1 The court below, in a conditional order, granted custody to the mother. The father appealed that order to this court, Davidyan v. Davidyan, 229 Pa. Superior Ct. 495, 327 A.2d 139 (1974), and this court quashed the appeal and remanded the case to the lower court for a determination pertaining to the conditional provisions of the lower court order. On August 21, 1974, the lower court, acting on Petition of the appellee, and without hearing, amended its order and the father again has appealed.
Since the basic fact situation and previous order are detailed in our previous opinion, they need not be repeated here. The present order is as follows:
"And Now, this 21st day of August, 1974, this Court having heretofore decided this child custody case by order dated July 25, 1973, following which the Respondent appealed to the Superior Court, which Court granted a supersedeas; and the Superior Court having now handed down an opinion and order quashing that appeal and remanding the case to this Court 'for its
[ 230 Pa. Super. Page 602]
own determination in light of the circumstances'; and this Court having now reviewed this opinion as well as the Dissenting Opinion, the Petition of the Relatrix seeking an amendment of the Order of July 25, 1973, and the contents of the Supplemental Record of the Relatrix in the Superior Court (Appellee therein); this Court now states that it is satisfied that the Opinions of Scottish counsel supported by the citations of numerous case authorities constitute sufficiently substantial compliance with the second condition to the Relatrix' reception of custody of the minor subject of this proceeding; the amount of the monetary condition thereto is increased to $5,000.00 and upon the posting thereof the Relatrix shall take custody of Nicholas Gail Christie Davidyan, subject to the rights of visitation in the Respondent as set forth in the July 25, 1973 order; in all other respects the order of July 25, 1973 is republished and confirmed.
On September 9, 1974, appellee posted a $5,000 bond which was accepted and approved by the lower court, and as is clear from the order of August 21, 1974, the appellee has satisfied the lower court on its condition pertaining to the jurisdictional situation in Scotland. We, therefore, now are faced with an appeal from a final order requiring our review of this award of custody to the mother keeping in mind that the primary consideration is always the permanent welfare and best interest of the child. Act of June 26, 1895, P. L. 316, § 2, 48 P.S. § 92; Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Graham v. Graham, 367 ...