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PENNY JO NEMETH v. DOUGLAS NEMETH (01/12/82)

submitted: January 12, 1982.

PENNY JO NEMETH
v.
DOUGLAS NEMETH, APPELLANT



NOS. 1233 AND 1234 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division-Law, of Butler County, at No. A.D. No. 79-1069, Book 116, Page 401.

COUNSEL

Claude V. Falkenhan, Zelienople, for appellant.

Lester Scott Becker, Butler, for appellee.

Hester, Beck and Van der Voort, JJ.

Author: Van Der Voort

[ 306 Pa. Super. Page 49]

This case has had a long, and to some extent, confusing passage through the Butler County Court of Common Pleas. The controversy arose from conflicting claims, by now divorced

[ 306 Pa. Super. Page 50]

    parents, over the custody of their two children, now aged 4 and 6, (ages 3 and 5 at the time of the order here appealed from).

On November 5, 1979, the parties executed a "Property Settlement, Support and Custody Agreement" in which they agreed to live, separate and apart, to divide their household effects and real property. Custody of the children was placed by implication in the mother, with partial custody in the father. The father was to pay support to the mother for the benefit of the children. On February 24, 1980, the father phoned the mother and advised her he was retaining custody of the two children. On February 25, 1980, the mother filed a petition for habeas corpus,*fn1 and on February 26, 1980, the father filed a "Petition to Confirm Custody." Both petitions were presented to President Judge Kiester for disposition at the same time.

Judge Kiester entered, without a hearing, an order dated February 26, 1980, denying the "Petition to Confirm Custody", finding that "this is not proper procedure to determine custody or to protect the rights of children." The court granted the petition for habeas corpus; and ordered the father imprisoned in Butler County Prison until custody of the children was returned to the mother. On the same day, the father filed an appeal to this court at No. 157 Pittsburgh, 1980. On February 27, 1980, Judge Kiester refused an application for a stay, pending appeal. On February 29, 1980, Judge Montgomery of the Superior Court, upon Petition and Answer of Counsel, and after a hearing, remanded the case to the Butler County Court for a hearing within five days on the Petition to Confirm Custody, which was to be treated as a "petition to change custody due to a change in circumstances . . . ." The father was ordered released upon posting of bond in the sum of $2,000, conditioned upon his production of the children at the hearing.

On March 4th and 5th, 1980, Judge Kiester conducted a hearing, after which he entered an order dated March 5,

[ 306 Pa. Super. Page 511980]

continuing principal custody of the children in the mother, with visitation rights in the father. On March 6th, 1980, the father filed a second appeal to the Superior Court at No. 195 Pittsburgh 1980.*fn2

On December 4, 1980, the father again refused to return the children to their mother. Appellant further claims he acted so "believing the welfare of his children was threatened". Appellee-mother filed a second petition for contempt on December 5, 1980. A hearing was held that day before Judge Kiester. After argument by counsel, a rule to show cause was issued upon the father. A hearing was held on December 8, 1980, before Judge Kiester, following which he entered the order presently appealed from. Appellant was found to be in violation of the order of March 5, 1980 and held in contempt of the court. He was directed to return the children to the mother's custody; and required to post bond ...


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