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VIRGINIA TRAVITZKY v. THOMAS TRAVITZKY (12/15/87)

filed: December 15, 1987.

VIRGINIA TRAVITZKY, APPELLANT,
v.
THOMAS TRAVITZKY, APPELLEE (TWO CASES)



Appeal from the Order entered December 11, 1986 in the Court of Common Pleas of Montgomery County, Civil at No. 79-6851. Appeal from the Order entered March 12, 1987 and Judgment entered March 25, 1987 in the Court of Common Pleas of Montgomery County, Civil at No. 79-6851.

COUNSEL

Joseph F. Lawless, Jr., Media, for appellant.

Lynne Z. Gold-Bikin, Norristown, for appellee.

Montemuro, Popovich and Cercone, JJ.

Author: Montemuro

[ 369 Pa. Super. Page 67]

The instant case is a consolidation of two appeals and involves a complex factual and procedural history. The appellant, Virginia Travitzky, and the appellee, Thomas J. Travitzky, were granted an annulment of their marriage on October 31, 1979. Following the annulment, there was

[ 369 Pa. Super. Page 68]

    extensive litigation between the parties concerning the custody and support of their two children. On November 29, 1982, following several changes in custody, Thomas Travitzky was granted custody of the children. In December of 1982, Virginia Travitzky, in violation of the trial court's custody order, left Montgomery County with the two children. She thereafter lived for three years under an assumed name with her children at a location outside of the state of Pennsylvania. During this time, Mr. Travitzky was not aware of the location of his children, and he searched for them. In January, 1986, Virginia Travitzky returned to Pennsylvania and was arrested and charged with kidnapping and interference with a custody order.

On June 18, 1986, a proceeding was held before the Honorable Samuel W. Salus, II, of the Court of Common Pleas of Montgomery County. Virginia Travitzky was represented by counsel at this proceeding. The parties' minor children were represented by a court appointed guardian ad litem. Thomas Travitzky appeared pro se. Counsel for Virginia Travitzky presented a document entitled "Agreement, Stipulation and Order" (hereinafter referred to as the "Agreement") which purported to resolve various custody, support and visitation matters. This Agreement required, inter alia, that Virginia Travitzky pay to Mr. Travitzky $25,500.00 "in partial consideration for damages allegedly suffered" by Mr. Travitzky as a result of his search for his children during the three years that Virginia Travitzky had them living outside the state of Pennsylvania. (R. at 61a). The Agreement also confirmed that Virginia Travitzky was to continue to have physical custody of the children. Mr. Travitzky was to have no court ordered visitation with his children and was not to be liable for the payment of any support for the two minor children. (R. at 62a). The Agreement also included the following provision:

Father [Mr. Travitzky] herewith represents that he is not desirous of having MOTHER criminally prosecuted in such proceeding as hereinabove described. Further, Father agrees that, if necessary, he shall communicate such

[ 369 Pa. Super. Page 69]

    desire to the District Attorney for the County of Montgomery and, further, request that such outstanding criminal charges be nolle prosqued and/or withdrawn.

(R. at 63a).*fn1 The stated purpose of this Agreement was to resolve the myriad of disputes that had developed between the parties and, to that end, the Agreement includes a statement that the parties would "resolve, end, and terminate all existing legal proceedings between them" and would "not bring any further proceedings against each other relating to these matters and accruing up to the time of this Agreement." (R. at 60a).

The Agreement was executed by the parties and became an order of the court on June 18, 1986, following a colloquy in which Judge Salus outlined the contents of the Agreement and asked each party whether they understood and agreed to the various provisions.*fn2 Following the entry of

[ 369 Pa. Super. Page 70]

    the Agreement as an order of the court, Virginia Travitzky discharged her counsel and sought to have the Agreement vacated by appealing to this Court. On December 30, 1986, this Court quashed the appeal as interlocutory on the grounds that if Virginia Travitzky wished to claim that the Agreement was null and void because her consent to its terms had been procured through duress, she should have filed a petition in the trial court seeking to vacate the Agreement.

While this particular appeal was pending, Virginia Travitzky did not comply with the court order of June 18, 1986. Specifically, she did not pay the $25,500.00 to Mr. Travitzky. As a result, Mr. Travitzky filed a petition for contempt on September 23, 1986. The record in the instant case includes an unsigned Order for Hearing scheduling a hearing on the contempt petition for November 3, 1986. (R. at 6a). Virginia Travitzky appeared at the November 3, 1986 hearing pro se. During this hearing, Virginia Travitzky testified that she had signed the Agreement under duress and, when asked whether she had paid the $25,500.00, she stated that she did not have the money. (R. at 19a). Virginia Travitzky also acknowledged that she had filed a petition for support against Mr. Travitzky in August of 1986 and that she owned a home under an assumed name in Allentown, Pennsylvania. (R. at 28a). When she was questioned concerning her employment status, Virginia Travitzky testified that she had lost her job with Blue Cross of Lehigh County in June of 1986 when it merged with Capital Blue Cross in Harrisburg. (R. at 28a-29a). She also testified that she had lost a position with the Thermal Seal Window Corporation and that she had lost a waitressing position because of her health. (R. at 29a-30a). Virginia Travitzky also testified that she "had no way of applying for a loan against"

[ 369 Pa. Super. Page 71]

    her house and that she did not "make enough to qualify for a loan." (R. at 42a).

During the November 3, 1986 contempt hearing, Virginia Travitzky attempted to have the court hear a petition for recusal which she had filed that morning. (R. at 44a).*fn3 The trial court stated that it would take this matter "under advisement." (R. at 46a). On November 21, 1986, Judge Salus entered an order finding that Virginia Travitzky was in willful contempt of the Agreement and of the court order dated June 18, 1986. She was ordered to pay the $25,500.00 plus $500.00 in counsel fees within thirty days, and in default thereof, a judgment would be entered against her. On December 11, 1986, when Mr. Travitzky had not received the $26,000.00, he filed a praecipe to enter judgment on the contempt order. Virginia Travitzky appeals from this November 21, 1986 Contempt Order.

On February 26, 1987, Virginia Travitzky filed a petition in the Montgomery County Court of Common Pleas to vacate the Agreement on the grounds that the Agreement is void as against public policy, that there has been a total failure of consideration because Thomas Travitzky has breached the Agreement, and that she had not entered the Agreement knowingly or voluntarily. (R. at 1a-3a). On the same day, Virginia Travitzky filed a motion to recuse

[ 369 Pa. Super. Page 72]

    the Honorable Samuel W. Salus, II. On March 3, 1987, the trial court denied both the petition to vacate and the recusal petition, even though Mr. Travitzky had not responded to the petitions and even though there had been no hearing concerning these matters. On March 12, 1987, Virginia Travitzky's petition for reconsideration was filed and denied by Judge Salus. She appeals from the denial of the petition to vacate the Agreement but has not appealed from the denial of the recusal motion.

On March 25, 1987, Thomas Travitzky successfully entered judgment against Virginia Travitzky on the November 21, 1986 Contempt Order. (This judgment has apparently been docketed against the property held by Virginia Travitzky in Allentown, Pennsylvania). Virginia Travitzky also appeals from this entry of judgment.

In appealing the November 21, 1986 Contempt Order, appellant, Virginia Travitzky, raises four grounds upon which she contends the trial court erred, and upon which ...


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