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SAMUEL SMITH v. ANNETTE W. SMITH (03/31/77)

decided: March 31, 1977.

SAMUEL SMITH, APPELLANT IN NO. 279,
v.
ANNETTE W. SMITH, APPELLANT IN NO. 272



Appeals from the Order of the Court of Common Pleas, Family Division, Domestic Relations Branch, of Philadelphia County at No. 74-02721. NOS. 272 and 279 OCTOBER TERM, 1976.

COUNSEL

A. Martin Herring, Philadelphia, for appellant at No. 272 and appellee at No. 279.

Albert Momjian, Philadelphia, for appellant at No. 279 and appellee at No. 272.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 246 Pa. Super. Page 610]

The instant appeals arise from a protracted and complex action involving questions of custody, visitation and child support. Samuel Smith and Annette W. Smith were married in 1952 and divorced in 1971. The only child of their marriage, a son, was ten years old at the time of the litigation before the lower court. The action in the lower court arose out of the father's attempts, through court action, to obtain the custody of his son. The lower court held extensive hearings in the case, consuming approximately fourteen court days and producing a prodigious volume of testimony and exhibits for review.

[ 246 Pa. Super. Page 611]

From the final Order of the lower court, the appellant mother challenges both procedurally and substantively the award of primary custody of the son to the father. The father, also an appellant, challenges the Order of the lower court with reference to the command that he pay a certain amount of support and provide certain transportation during times of visitation by the son with the mother. We have been aided in our review by thorough briefs by counsel for both parties, in addition to a supplemental pro se brief filed by the appellant mother. As is our duty in custody matters we have given the total record and all contentions by the parties thorough scrutiny. See Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974). Following such broad review we have concluded that the Order of the lower court was entirely proper and we therefore affirm.

The appellant mother, in the appeal docketed at No. 272 October Term, 1976, raises several challenges to the Order of the lower court granting custody of the minor son to his father. As her first contention, she claims that the lower court held an ex parte hearing which violated due process and "irreparably tainted" all proceedings which followed. The record indicates that on August 29, 1974, the hearing in question was held before a Judge of the local court on the father's petition for a temporary order of custody. During this hearing, the father's counsel informed the court that the mother's counsel had been notified of the father's intent to apply for the temporary custody order but that such opposing counsel was, at the time of the request, out of town on a previously planned trip. Therefore, it was requested that the court treat the matter as it would a request for an ex parte injunction and schedule a full hearing on the request for custody within a few days when the mother's counsel was to again be in the city and available.

Under such circumstances, the lower court, proceeding ex parte, heard evidence which it believed justified an

[ 246 Pa. Super. Page 612]

Order of temporary custody to the father.*fn1 On September 3, 1974, a full hearing was held on the father's custody request. Both parties were present with counsel and an agreement was reached by all concerned that, inter alia, the status quo with custody would be maintained and that the evidence adduced at both the August 29, 1974 and September 3, 1974 hearings would not be used in further proceedings to be held before another judge, then yet to be assigned, on the father's petition for permanent custody.

In view of the full hearing held on September 3, 1974 and the lengthy hearings held subsequent to that date in this case, and especially in light of the positions taken by the parties on September 3, 1974, relative to the earlier ex parte hearing, we find no basis for reversal as a result of the August 29, 1974 hearing. It had no effect on later proceedings, was followed by a full ...


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