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JALAL FATEMI v. LINDA L. BRODBECK FATEMI NOW BY CHANGE NAME LINDA L. BRODBECK (02/12/88)

filed: February 12, 1988.

JALAL FATEMI, APPELLANT,
v.
LINDA L. BRODBECK FATEMI NOW BY CHANGE OF NAME LINDA L. BRODBECK



APPEAL FROM THE ORDER ENTERED SEPTEMBER 19, 1986 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, CIVIL NO. 2883-C OF 1980.

COUNSEL

Thomas S. Cometa, Wilkes-Barre, for appellant.

Anthony J. Martino, Bangor, for appellee.

Cirillo, President Judge, and Tamilia and Beck, JJ. Tamilia, J., concurs with an opinion.

Author: Cirillo

[ 371 Pa. Super. Page 105]

This is an appeal from various orders entered in the Court of Common Pleas, Luzerne County following hearings on an emergency contempt petition. We affirm the court's order, as modified.

Appellant, Dr. Jalal Fatemi, is the natural father of two young boys, who are the subject of the instant custody dispute. Appellee, Linda Brodbeck, formerly Mrs. Fatemi, is the natural mother of the children.

Pursuant to an order dated June 24, 1986, Linda Brodbeck was granted partial custody of the children, consisting of every other weekend, five weeks during the summer, and various holidays. The order contained various other provisions, including the following: "As security to insure compliance with this Order, the deeds presently being held by this Court, and the lis pendens filed against such real estate [appellant's], shall continue in full force and effect."

On one weekend when the children were to be with their mother, appellee was unable to determine their whereabouts. Appellee subsequently filed a petition to hold appellant in contempt. A rule to show cause was issued on September 5, 1986. The rule ordered appellant to show cause why he should not be held in contempt, and why the children should not be removed from his custody and placed in the custody of their natural mother. Appellant was ordered to appear for the hearing set for September 8, 1986. Service of the petition and rule was made upon counsel of

[ 371 Pa. Super. Page 106]

    record. Dr. Fatemi did not appear for the September 8 hearing, but was represented by counsel. At the hearing, Dr. Fatemi's counsel pointed out that it was his understanding that the lis pendens was against Dr. Fatemi's bare tract of land, and not against his house. Counsel also claimed that appellant had not been properly served pursuant to the applicable rules of court. The court subsequently granted appellee's request that the court issue a lis pendens "against the home as security for Dr. Fatemi under the court rules." The court then instructed counsel to take the appropriate steps to record this fact. The court scheduled another hearing, and ordered Dr. Fatemi to appear. Counsel informed the court that appellant's last known address was in Birmingham, Alabama.

The second hearing was held on September 19, 1986. Dr. Fatemi again did not appear. Counsel informed the court that Dr. Fatemi had fled the jurisdiction for his native country, Iran, and had taken the children with him. Counsel also informed the court that he had verbally advised Dr. Fatemi on two occasions of the proceedings to be held on September 19. Thereafter, appellant's counsel again objected to the notice procedure. Despite these objections, the court proceeded to hear the merits of the case. At the conclusion of the hearing the court issued several orders, from which appellant takes this appeal.

Appellant raises the following five issues on appeal:

(1) Did the hearing judge abuse his discretion or commit an error of law when he issued a number of court orders against appellant who had not been served as required by Pa.R.C.P. 1915.12(a), (b), (c), and (d);

(2) Did the hearing judge abuse his discretion or commit an error of law when he held appellant in criminal contempt when appellant, at no time, appeared personally in or about the court;

(3) Did the hearing judge abuse his discretion or commit an error of law when he fined appellant the sum of $25,000, when appellant, at no time, was served in conformity with the applicable rules of procedure;

[ 371 Pa. Super. Page 107]

(4) Did the hearing judge abuse his discretion or commit an error of law when he ordered that a lis pendens be placed against all of appellant's real estate which included his home which he had listed with a Realtor; and,

(5) Did the hearing judge abuse his discretion or commit an error of law when he changed court ordered legal custody from appellant to appellee, without conducting a hearing with appellant present to determine whether or not the change in custody of the children would be in their best interests and permanent welfare.

We observe at the outset that this court could properly quash this appeal. We have previously held that where a parent has violated a custody order and the contempt is found to be flagrant, appeal may be denied. In Commonwealth ex rel. Beemer v. Beemer, 200 Pa. Super. 103, 188 A.2d 475 (1962), this court quashed an appeal where the mother violated the custody order, was adjudged to be in contempt of court, and then appealed. We stated there:

The question raised by this motion to quash is of great importance. There are a rash of modern instances where court orders are disobeyed with impunity and respect for the law and the courts thereby weakened. It seems, therefore, that it is the duty of the appellate courts to see to it that every assistance is extended to the courts of the Commonwealth so that orders are meticulously carried out as otherwise the dignity of the judiciary, the majesty of the law and its enforcement are clearly undermined.

Id., 200 Pa. Superior Ct. at 106, 188 A.2d at 476; see also National Union of Marine Cooks v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954) (denial to one who has disobeyed a trial court's order of his statutory right to appeal violates neither the Fourteenth Amendment's guarantee of equal protection of the laws nor its guarantee of due process of law).

We acknowledge the familiar tone of the facts this case. For this reason, and for the edification of the bench and bar, we address the merits of this case.

[ 371 Pa. Super. Page 108]

I

With respect to Dr. Fatemi's first argument, we point out that, contrary to his contention, the notice of the order to appear does comply with the form set forth in Pa.R.C.P. 1915.12(a). In addition, appellee's petition does allege facts, pursuant to Pa.R.C.P. 1915.12(b), which constitute willful failure to comply with the custody order. Appellant argues that since the custody order mentions nothing about obtaining the court's permission to change his (and the children's) residence, he is not in contempt, and therefore appellee has not complied with Rule 1915.12(b). This argument, however, ignores the language and purpose of the custody order.

The order provides that the mother has partial custody according to a specific schedule. In addition, the order states: "Neither party . . . shall engage in any conduct which would serve to undermine the relationship of the children with either parent." Appellant's decision to retreat to Iran has not only violated the custody schedule, but has blatantly interfered with what the order attempted to preserve -- the children's ...


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