No. 566 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, at No. 319 May Term, 1976.
Joanne Ross Wilder, Pittsburgh, with her Stewart B. Barmen, Pittsburgh, for appellant.
Gustave Diamond, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Jacobs, President Judge, and Cercone, J., concur in the result. Price, J., dissents.
[ 253 Pa. Super. Page 351]
Appellant contends that the lower court improperly denied her habeas corpus petition in which she sought to regain custody of her two children from appellee, her ex-husband and father of the children. We agree and, therefore, reverse the order of the lower court.
On June 3, 1976, appellant filed a petition for habeas corpus in the Court of Common Pleas of Washington County seeking to regain custody of her two sons. At hearings on
[ 253 Pa. Super. Page 352]
August 9, and 10, 1976, and September 14, 1976, the evidence showed that appellant and appellee were married on August 3, 1968, and divorced on May 31, 1973. A son, Ronald, was born of the marriage. Adam, appellant's other son, was born during her previous marriage. Appellee adopted Adam following an adoption proceeding held in the Orphans' Court Division of the Allegheny County Court of Common Pleas on November 29, 1971. At the time of their divorce, appellant and appellee entered into a "Property Settlement Agreement" which dealt, in part, with the custody of their sons. The agreement stated:
"1. The parties hereto agree that each of them shall have partial custody of the children of the marriage and during the period that said party had partial custody, the other party shall be entitled to unlimited visitation rights with said children. It is further understood and agreed that the partial custody of the father shall not exceed six (6) months during any one (1) year and shall not be exercised in any manner which will disrupt the children's attendance at school."
Following the separation of the parties in January, 1973, the children lived with appellant in the marital residence in Bellvue, Pennsylvania. In April, 1973, appellant sold the house and moved with the children into an apartment a half block away from the house. At that time, appellant worked as a display manager for a furniture store in Corapolis. A year and a half later in August, 1974, appellant purchased a house in Monroeville. The move was necessitated by a job promotion which required appellant to work at the Monroeville branch of the furniture store. She enrolled her children at an elementary school in Monroeville. Toward the close of 1975, appellant's employer, in response to financial reverses, changed the store hours and required appellant to work until 10:00 p. m., five days per week. Because these new working hours left appellant with little or no time with her children, she secured new employment in December, 1975. However, because her new place of employment was
[ 253 Pa. Super. Page 35355]
miles from her home in Monroeville, appellant sold her house and moved, in April of 1976, to a condominium in Pennsbury Village, a section of Pittsburgh, situated within ...