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MARIE THERESA BURKE v. MARY MODESTO POPE (06/03/88)

filed: June 3, 1988.

MARIE THERESA BURKE, APPELLEE,
v.
MARY MODESTO POPE, APPELLANT



Appeal from the Order entered in the Court of Common Pleas of Delaware County, Civil Division, No. 85-4082

COUNSEL

Harry M. Byrne, Jr., Philadelphia, for appellant.

Joyce A. Monaco, Media, for appellee.

Montemuro, Tamilia and Johnson, JJ.

Author: Tamilia

[ 374 Pa. Super. Page 468]

This appeal brings before us for the second time a child custody dispute between a parent and an unrelated non-parent. Mrs. Mary Modesto Pope appeals a March 17, 1988 Order of the Court of Common Pleas of Delaware County implementing a plan to restore to her custody of her three minor daughters. The trial court's Order was a result of our Court's decision in Burke v. Pope, 366 Pa. Super. 488, 531 A.2d 782 (1987), petition for allowance of appeal filed,

[ 374 Pa. Super. Page 469]

No. 821 E.D. Allocatur Docket (Oct. 20, 1987), in which we vacated an Order of custody entered in the trial court, which awarded Dr. Marie Theresa Burke sole custody with certain visitation and partial custody rights remaining in Mrs. Pope, and remanded with directions to implement a plan designed to restore custody of the children to Mrs. Pope within six months to one year.*fn1

The first part of the rather arduous procedural history of this case was summarized in our earlier Opinion as follows:

This case commenced on March 25, 1985 when Dr. Burke, a former obstetrician-gynecologist, filed a petition seeking custody of Mrs. Pope's three children, Amanda Marie, Rebecca Ann and Abigail Leigh Pope. On April 23, 1985, Mrs. Pope filed a petition for visitation and partial custody and on April 29, 1985, a response to Dr. Burke's original petition and a cross-petition for custody. The parties entered into stipulations, eventually adopted as Orders of court, on May 10, 1985 and July 2, 1985, which temporarily placed physical custody of the children with Dr. Burke and allowed Mrs. Pope visitation four hours a weekend on alternate Saturdays and Sundays. On December 12, 1985, Mrs. Pope filed a petition for special relief, pursuant to Pa.R.C.P. 1915.13, requesting modification of the temporary custody Order and requesting an emergency Order for Christmas visitation. On December 18, 1985, the Honorable Howard F. Reed, Jr., ordered that Mrs. Pope have special visitation time with her children on Christmas day, 1985. On January 15, 1986, Dr. Burke filed a response to the December 12, 1985 petition and a cross-petition for special relief pursuant to

[ 374 Pa. Super. Page 470]

Pa.R.C.P. 1915.13. On January 27, 1986, Mrs. Pope filed an answer.

In all, five hearings were held before the Honorable John V. Diggins, on January 28, February 27, April 21, June 5 and October 1, 1986. On June 12, 1986, Mrs. Pope filed a motion, pursuant to Pa.R.C.P. 1915.13, requesting entry of a partial custody Order. On June 18, 1986, Judge Diggins entered a temporary Order for partial custody, decreeing that Mrs. Pope have partial custody of her children each weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday. On August 27, 1986, Mrs. Pope filed a petition for contempt of the partial custody Order. Following the October 1, 1986 hearing, Judge Diggins directed Dr. Burke to comply with the previous temporary Order for partial custody. Finally, after the submission of post-trial briefs, on February 10, 1987, Judge Diggins filed an Opinion and Order awarding sole physical custody to Dr. Burke with visitation and partial custody rights to Mrs. Pope.

Burke at 490-491, 531 A.2d at 783 (footnotes omitted). Mrs. Pope appealed and on September 21, 1987, we vacated the February 10, 1987 Order and remanded for a new custody Order, consistent with our Opinion, to implement a plan to restore custody to Mrs. Pope. See Burke, supra.

On remand, the trial court acted promptly to set a rehearing date of October 8, 1987; however, on October 1, 1987, in response to a petition by Dr. Burke, the trial court continued the rehearing until after the Pennsylvania Supreme Court rendered a decision on Dr. Burke's petition for allowance of appeal. In effect, this stayed the judgment entered by our Court on September 21, 1987. Mrs. Pope appealed the stay Order to the Superior Court on November 12, 1987, which resulted in a per curiam Order by our Court, dated December 24, 1987, directing the trial court "to comply forthwith with this court's judgment and [O]rder of September 21, 1987." Subsequently, on February 3, 1988, the trial court heard argument for the purpose of establishing a schedule to return custody of the children to their mother.

[ 374 Pa. Super. Page 471]

Both parties submitted their own proposals for compliance with the directives contained in this Court's Order of September 21, 1987. Finally, on March 17, 1988, the trial court filed the Order which is the subject of the instant timely appeal by Mrs. Pope.*fn2

The question now on appeal is whether the trial court's implementation Order of March 17, 1988 is in substantial compliance with the standards set forth in our Opinion in Burke, supra. This calls for a review of the earlier custody Order, the ...


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