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COMMONWEALTH PENNSYLVANIA EX REL. SUZANNE J. ZERCHER v. ROBERT W. BANKERT. APPEAL SUZANNE J. ZERCHER (06/13/79)

decided: June 13, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. SUZANNE J. ZERCHER
v.
ROBERT W. BANKERT. APPEAL OF SUZANNE J. ZERCHER



No. 524 March Term 1977, Appeal from the Order dated October 31, 1977, of the Court of Common Pleas, York County, at No. 107, June Term, 1963.

COUNSEL

Gerald E. Ruth, York, for appellant.

John M. Boddington, York, for appellee.

Spaeth, Hester and Montgomery, JJ.

Author: Montgomery

[ 266 Pa. Super. Page 596]

This is an appeal from an order of Judge Buckingham of the York County Court dated October 31, 1977 remitting $1740.00 of arrearages the appellee, Robert W. Bankert, owed on an order providing for the support of his three children, custody of which had been awarded to their mother, Suzanne Zercher, formerly Suzanne Bankert. The reason given by Judge Buckingham for remitting the arrearages was that the appellant had denied the visitation rights of the father for one year from December 1975 to December 1976 by intentionally and wilfully withholding information of their whereabouts for that period.

The order of October 31, 1977 remitting the arrearages also provided that the existing order of support be continued, and in addition, directed appellee to pay $20.00 per month on the balance of arrearages then owing. Thus, the only issue before us is the propriety of that part of the order remitting $1740.00 of the arrearages. A review of the history of the case is helpful in resolving this issue.

On petition by the mother, an order, dated May 8, 1974, was made providing that appellee father pay $215.00 per month for the support of his three children. Subsequently, on August 19, 1975, by agreement,*fn1 this was modified to $145.00 for two children, Jennifer A., born August 27, 1966, and Sean M., born April 17, 1962. Robert was not included because he had "graduated May 31, 1975", although he would not have reached the age of 18 until January 21, 1976.

[ 266 Pa. Super. Page 597]

In November or December 1974, the father had instituted habeas corpus proceedings in York County to establish visitation rights, and a hearing on his petition was set for December 6, 1974, which was postponed until February 24, 1975 because the mother was unable to attend for medical reasons. However, this order, signed by Judge Blakey, did provide for temporary visitations until final hearing. Subsequent to December 6, 1974, the mother moved to Colorado for reasons of health on the advice of her doctor and took the children with her. Appellant or her counsel failed to appear at the hearing scheduled for February 24, 1975 and a rule was directed to her to show cause why she should not be declared subject to the continuing jurisdiction of the York County court, and why she should not be held in contempt for failure to observe the interim visitation order previously entered. Said rule was to be served by ordinary mail addressed to her at 8915 Corona Street, Apt. 105, Thornton, Colorado, 80229, and a copy sent to her York County attorney, Allen H. Smith, Esq. This rule was made returnable March 7, 1975 at which time a hearing was to be held. The order also provided that "if neither the respondent nor an attorney representing her appears at such hearing, this court shall take such further action as may be appropriate without further notice which may include a civil penalty to be offset against any support order now in effect."

Neither appellant nor her counsel appeared at the hearing scheduled for March 7, 1975, although the court did receive, informally, information that led it to conclude that he, (Judge Blakey) could not find her in contempt and he decided not to take any further action on the husband's petition at that time. However, in a supplemental order also dated March 7, 1975, Judge Blakey confirmed the father's right to visitation, and that the York County court still had jurisdiction of the parties and the subject matter. He further observed that "the schedule previously established should be modified so that the father should have substantial visitation during the summer months, and on such other occasions as he would be financially able to travel

[ 266 Pa. Super. Page 598]

    to Colorado to exercise the same." He directed that a copy of the order be sent to appellant at the address in Colorado previously stated "and reminded her of her duty to keep the petitioner posted as to her whereabouts so that the subject of visitation can later be pursued. A failure in this regard would be an indication that the documents forwarded do not accurately describe the situation and no doubt any court later considering the subject would ...


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