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PAUL L. MILLER v. LORRAINE N. MILLER (08/24/79)

filed: August 24, 1979.

PAUL L. MILLER, SR., APPELLANT,
v.
LORRAINE N. MILLER



No. 1643 October Term 1978, Appeal from the Order entered by the Court of Common Pleas of Cumberland County at No. 3312 Civil Action 1976.

COUNSEL

P. Richard Wagner, Harrisburg, for appellant.

John J. Krafsig, Jr., Harrisburg, for appellee.

Price, Spaeth and Lipez, JJ. Price, J., dissents.

Author: Spaeth

[ 269 Pa. Super. Page 85]

This is an appeal from an order denying appellant's petition for reconsideration of a prior order denying him visitation with his son.

Appellant and appellee were married May 13, 1966; the son was born July 27, 1974. The parties separated on December 6, 1974, and were divorced on August 22, 1975 (appellee subsequently remarried). On October 14, 1975, appellant was ordered to pay $32.50 per week to support his son. At the support hearing appellant denied under oath that he was the boy's father. (Appellant made no subsequent efforts to have non-paternity judicially established, and on this appeal neither party disputes his paternity.)

On September 30, 1976, appellant petitioned for visitation. The petition was denied October 13, 1976, because the lower court found that the petition was not brought in good faith. The court based this finding on these facts: appellant's denial of paternity at the support hearing; the fact that appellant had visited his son only twice since the boy's

[ 269 Pa. Super. Page 86]

    birth;*fn1 and the fact that appellant had not complied with the support order.

On February 1, 1977, appellant was adjudicated in contempt of court for failure to pay support. On April 11, 1978, appellant filed his petition asking the lower court to reconsider its order denying visitation. After a hearing the petition was denied, and this appeal followed.

An initial question we must consider stems from the fact that appellant never appealed the lower court's first order denying him visitation. Appellee asserts that appellant is not merely attempting to appeal an order with respect to which the appeal period long ago expired. However, an order granting visitation is temporary in nature. Commonwealth ex rel. Bailey v. Sumner, 193 Pa. Super. 79, 163 A.2d 677 (1960). If circumstances change, it is proper to re-examine the order. Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978); see De Welles v. Dwelle, 214 Pa. Super. 376, 257 A.2d 594 (1969) (change of circumstances would justify change in prior unappealed order; no such change found, however). Here, the lower court stated that because there were no changed circumstances since the original petition, appellant's petition for reconsideration was an attempt to "revive the right of appeal lost long ago." Lower court opinion at 5. At the same time, however, the lower court recognized that there were changed circumstances: appellant had attempted to visit his son, and he had paid up the support arrearages. Thus there was a proper basis for a petition to reconsider, and the lower court properly proceeded to the separate question of whether these changed circumstances presented any reason to alter the first order.

In resolving this question against appellant, the lower court noted that its first order had been based on a finding that the first petition had been brought to harass appellee. This is not quite accurate: the first order was based on a ...


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