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ELIZABETH MARTINCHECK v. JOHN MARTINCHECK (01/18/79)

decided: January 18, 1979.

ELIZABETH MARTINCHECK, APPELLANT,
v.
JOHN MARTINCHECK



No. 342 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Action - Law at No. 1003 January, 1973.

COUNSEL

Marla R. Blum, Greensburg, for appellant.

William D. Boyle, Greensburg, for appellee.

Price, Hester and Watkins, JJ.

Author: Price

[ 262 Pa. Super. Page 347]

This appeal arises from the order of the court below, in a habeas corpus proceeding, granting custody of two children to their father.*fn1 For the reasons set forth herein, we reverse that order and remand the case for a new hearing and full opinion in this matter.

The parties to this appeal, married on February 4, 1966, are now divorced. Since the parties' separation in March 1973, the mother has had continuous custody*fn2 of the children, with the father's visitation rights periodically adjusted, until October 13, 1977, the order herein appealed.

The testimony in this case developed as follows. The father contended that all of the conflict surrounding custody resulted from the mother's numerous and repeated refusals to comply with court orders, and her insistence on moving the children to North Carolina. The father testified that the mother often refused to permit the father to speak with his children on the telephone, and stressed that he was not financially able to visit the children in North Carolina as often as he would have liked. When the mother did return

[ 262 Pa. Super. Page 348]

    to the Commonwealth for brief periods, she did not inform the father so that he could take advantage of the opportunity to see his children. The father testified that the mother's refusal to be present for a hearing in the lower court and her move back to North Carolina prior to a scheduled hearing in Westmoreland County forced him to go to North Carolina to attempt to get custody, or at the least, to assert his visitation rights.

It was the father's contention that the mother's household deprived the children morally, religiously and physically. He offered testimony attempting to establish the mother's extra-marital relationships, of which the children were supposedly aware.

The mother, on the other hand, emphasized that the children, while in her custody, were wrongfully removed from North Carolina by the father in the fall of 1975 and taken to Pennsylvania. A subsequent court order reaffirmed her right to the children, and she took them back to North Carolina. Then, in August 1977, the children came to Pennsylvania to visit their father. They were not, however, returned to North Carolina before school reopened, as was anticipated. It was as a result of that incident that a habeas corpus petition was filed.

Based upon four days of hearings comprising a record of 524 pages, the court below issued findings of fact and an order of court on October 13, 1977. Therein, the court concluded that the father's testimony was not credible, that his actions were principally done out of spite, vengeance and ill feeling toward his wife, that the father willfully and intentionally violated the custody orders of the Pennsylvania and North Carolina courts, and that the father was in contempt of court. The court stated: "It is the opinion of this Court that John Martincheck does love his children and is ably providing for their needs except he is wrongfully attempting to destroy the ...


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