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COMMONWEALTH PENNSYLVANIA EX REL. JOHN C. ERMEL v. ROMAYNE B. ERMEL (12/30/83)

filed: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. JOHN C. ERMEL
v.
ROMAYNE B. ERMEL, APPELLANT



No. 529 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Luzerne County, 1976, No. 7317.

COUNSEL

Kenneth C. Marano, Wilkes-Barre, for appellant.

Ettore S. Agolino, Pittston, for appellee.

Rowley, Popovich and Montgomery, JJ.

Author: Rowley

[ 322 Pa. Super. Page 401]

This is a direct appeal from an order of contempt entered by the Luzerne County Court of Common Pleas on January 18, 1982. The trial court held Romayne B. Ermel, appellant,

[ 322 Pa. Super. Page 402]

    in contempt because of her failure to comply with court orders dated November 27, 1978 and December 18, 1979, that granted John C. Ermel, appellee, visitation with and joint custody rights concerning the parties' minor daughter, Rita Ann Ermel. We affirm.

The matter of custody and visitation rights concerning Rita Ann originated in 1976. At that time Rita Ann was 4 years old. She is now 11, and during the past seven years countless hearings and other proceedings have been held before four different trial judges. The case has been before our court on two previous occasions, resulting in a decision awarding visitation rights to Rita Ann's father,*fn1 and a subsequent order affirming an award of joint custody to the child's divorced parents.*fn2 Appellant has twice been held in contempt for failing to abide by the court ordered visitation and custody schedule. Appellant was first held in contempt on December 20, 1978, for failing to comply with the November 27, 1978 court ordered visitation schedule. On September 24, 1979, she was remanded to Luzerne County Women's Detention Center because she failed to purge herself of the contempt. On October 3, 1979, appellant gained her release by posting a $25,000.00 performance bond whereby she guaranteed that she would comply with the court's orders. (October 3, 1979 N.T. 31-32) Nevertheless, appellant did not adhere to the court ordered visitation schedule, nor did she comply with the subsequent order of December 18, 1979, awarding joint custody to both parents. Consequently, appellee filed a petition for attachment on

[ 322 Pa. Super. Page 403]

October 8, 1981, in order to compel appellant's compliance. After hearings held October 22, 1981, through November 5, 1981, appellant was again held in contempt by order dated January 18, 1982. The court, in its latest contempt order, before us on this appeal, declared that appellant's continued noncompliance rendered the performance bond forfeited for payment of appellee's attorneys fees.

Although appellant's brief frames two questions, her basic contention on appeal is that the evidence was insufficient to support the trial court's adjudication of contempt. Upon a thorough review of the exhaustive hearings and other proceedings in this case, we find that appellant has violated the court ordered visitation and custody schedule, and thus we affirm the trial court's contempt order.

The dominant purpose of civil contempt proceedings is to aid a private litigant by coercing the contemnor into compliance with a court order. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975); Nemeth v. Nemeth, 306 Pa. Super. 47, 451 A.2d 1384 (1982). The general rule in civil contempt cases is that the complaining party "has the burden of proving noncompliance with the court order by a preponderance of the evidence, and that present inability to comply is an affirmative defense to be proved by the contemnor." In Re Grand Jury, 251 Pa. Super. 43, 53, 379 A.2d 323, 327 (1977); Barrett v. Barrett, 470 Pa. 253, 263, 368 A.2d 616, 621 (1977). In considering an appeal of a contempt order, we must place great reliance on the ...


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