Appeal from the Judgment entered in the Court of Common Pleas of Cumberland County, Civil Division, No. 4562 Civil 1981.
Ronald Katzman, Harrisburg, for appellant.
Bonnie D. Menaker, Harrisburg, for appellee.
Wickersham, Rowley and Tamilia, JJ. Rowley, J., files a dissenting statement.
[ 361 Pa. Super. Page 195]
This is a direct appeal of an Order of contempt entered against appellant/mother for failing to comply with a partial custody Order which was last amended on April 3, 1984. Appellant was fined $250.00.
This appeal involves the youngest child of the now divorced parties, Laura Sutliff, born February 10, 1973, who is currently a seventh grade student residing with her mother, the appellant. Appellee/father resides in the same borough as his daughter and appellant, approximately one mile from appellant's home. While the parties have four children from their marriage, the present appeal only concerns the partial custody rights with respect to Laura.
The original partial custody Order was entered by Judge Sheely,*fn1 on February 25, 1982, and with respect to Laura ordered:*fn2
[ 361 Pa. Super. Page 1963]
. Petitioner [/father] shall have visitation with Laurie every Thursday evening from 5:30 p.m. to 8:00 p.m., commencing March 4, 1982, and on alternating Saturdays from 12:00 p.m. noon until 6:00 p.m., commencing Saturday March 6, 1982. Petitioner shall pick up Laurie at her home and return her after visitation.
Respondent [/mother] shall have the children ready and prepared to make the visits on the times indicated above . . . .
Subsequently, on April 2, 1982, appellee filed a petition for contempt relative to the partial custody Order. During a collateral hearing between the parties, Judge Sheely entered on April 12, 1982 an Order which modified the prior visitation Order, dated February 25, 1982, "based on the stipulation of counsel presented at this time." With respect to Laura that stipulation provided:
3. The Order relative to Laurie, Paragraph 3 of the original Order [dated February 25, 1982], shall continue as set forth and the Court to encourage both Laurie and her mother to continue the visits, and in the event that some occasion does come up which requires a change in the date or time of the visit, that Mr. Sutliff be given advance notice and be permitted to change the date or time and to have a substitute visit. (Emphasis added).
A contempt hearing was held on January 27, 1983 without result. In furtherance of appellee's April 2, 1982 petition for contempt, appellee filed a petition for determination of petition for contempt, enforcement, and expanded visitation privileges on April 4, 1983, which was dismissed, after hearing, by Order dated April 3, 1984. This April 3, 1984 Order amended the previous Order entered by stipulation of the parties dated April 12, 1982. With respect to Laura, the amending Order reads as follows:
Paragraph three is amended to read that the petitioner and natural father shall have partial custody of Laurie on
[ 361 Pa. Super. Page 197]
alternating Saturdays from 1:00 p.m. to 7:00 p.m., commencing Saturday, April 7, 1984. The petitioner shall also have partial custody every Tuesday evening, from 5:30 p.m. to 8:00 p.m., commencing Tuesday, April 10, 1984. Or if Tuesday does not suit both parties, then on Wednesday evenings at the same times.
This order has been entered after talking in chambers with Laurie with counsel present for both parties. No testimony by the parents has been taken in connection with this order, as the court does not feel that additional ...