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SCOTT v. SCOTT (04/22/76)

decided: April 22, 1976.

SCOTT, APPELLANT,
v.
SCOTT



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, No. 2187 of 1972, in case of Virginia Scott v. Charles Scott.

COUNSEL

Lois J. McKee, for appellant.

William G. Staton, submitted a brief for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Cercone

[ 240 Pa. Super. Page 66]

On January 22, 1972, Virginia Scott and Charles Scott were married. Four months later Virginia left her husband and returned to her parents. A month after the separation, on June 21, 1972, a son was born. Charles visited his wife and son several times, but was then denied access to Virginia's parents' home. Charles then went to the family division counseling office, Court of Common Pleas of Allegheny County, and requested a visitation order. At a conference with the court counselor, the parties orally agreed that Charles could visit the child either Tuesday or Wednesday evening each week. Charles, pursuant to the agreement, visited his son five times during October and November, 1972. Virginia and her parents allege that during these visits Charles was generally unruly and committed various violent acts. Charles denies these allegations. The night before Thanksgiving, 1972, after Charles had visited with his son, he requested permission to take his son to see his parents, who had never seen the child. Over the objection of Virginia's mother he took the child to his parents and then returned the child a short time later. Since that time Charles has not been permitted to see his son. Charles and Virginia were divorced in February, 1973. In November, 1974 Charles secured counsel and filed a petition with the Court of Common Pleas of Allegheny County seeking the establishment of visitation rights with his son. A hearing was held on February 7, 1975, and the following order was entered:

[ 240 Pa. Super. Page 67]

"Father to have Partial Custody away from home of the Mother with child, James Edward Scott, First and Third Saturdays of each month 1:00 P.M. to 7:00 P.M. Father to have no contact with the mother or maternal grandparents. Child to be picked up and left off by paternal grandmother."

Virginia has appealed to this court objecting to the order for several reasons.

First, Virginia contends that the lower court erred in awarding partial custody to appellee since he only requested visitation. In support of this argument appellant cites the case of Commonwealth ex rel. Rosequist v. Rosequist, 216 Pa. Superior Ct. 388, 393 (1970) which found the words "visit" and "visitation" to be synonymous and stated: "visit . . . means the right of the parent to go to see the child wherever he might be and does not include the right of the parent to take possession of the child." We agree that Charles was awarded partial custody rather than visitation, however we do not agree that it was error to do so. The trial judge found that ill will, altercations and arguments arose between Charles and Virginia and her parents. Since the child resides with Virginia and her parents, it is clear that visitation would not be proper. Therefore, the only alternative is to allow Charles to visit his son out of the presence of Virginia and her parents. This alternative is by definition partial custody. To deny this type of relief merely because Charles, in his petition, used the term visitation instead of partial custody would cause an unfair result simply on the basis of technicality and semantics. Charles wanted only to see his son. Accordingly, the lower court had full authority to enter this order which is correct and proper under the circumstances of this case.

Virginia next contends that it was error to order that the child be picked up and left off by his paternal grandmother. Virginia in her brief argues: "The Court

[ 240 Pa. Super. Page 68]

    has no authority to impose a burden upon a person (if, in fact, there is such a person) not a party to the case. This is a violation of the due process of law in both the State and Federal constitutions." First, appellant implies in this argument that there is no paternal grandmother. This is clearly incorrect. The lower court opinion specifically mentions the paternal grandmother. The fact is therefore clear that a paternal grandmother does exist. It is also very likely that Virginia knew of her existence. Virginia's implication that there is no such paternal grandmother must be therefore viewed as an attempt to mislead this court. An appellate court's task of ascertaining the facts of a particular case is difficult; it is made more difficult when a party misleads the court. Secondly, while Virginia's concern for the ...


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