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submitted: June 13, 1988.


Appeal from the Order in the Court of Common Pleas of Warren County, Civil Division, No. 32 of 1986.


Barry L. Smith, Warren, for appellant.

Scott G. Casher, Cresson, for appellee.

Tamilia, Johnson and Cercone, JJ.

Author: Tamilia

[ 376 Pa. Super. Page 176]

Appellant is the father of two children, a six year old boy and four year old girl, who reside with their mother, the appellee. Prior to the parties' divorce, an agreement by the parties was reduced to an Order of court, in which appellant was granted liberal visitation with the children while appellee was granted permanent legal and physical custody. Pursuant to the Order, entered April 7, 1986, appellant had visitation from noon until 6:00 p.m. each Sunday and from 6:00 p.m. Friday until 5:00 p.m. Sunday every third weekend of each month. From the date of the Order through the date appellant filed his petition for contempt, November 13, 1987, the parties have been unable to amicably cooperate in practically all matters pertaining to the children. Appellant, the more aggressive of the two, was charged with four counts of harassment by communication stemming from phone calls made to appellee, for which he was placed on probation. His parole was revoked on June 6, 1986 and appellant was sentenced to the county jail for six to forty-eight months. He was also ordered to undergo mental health counseling because of letters written to the trial judge which evidenced severe emotional distress.

[ 376 Pa. Super. Page 177]

Appellant filed his petition for contempt claiming appellee repeatedly denied his rights to visitation without cause. During a hearing on the matter on December 14, 1987, appellant claimed he had been denied the right to see his children since September because appellee was having trouble controlling the children and said it was appellant's fault. Appellant admitted he harassed appellee for which he was convicted of violating a protection from abuse order but he claims he no longer does those things. Appellee stated appellant had the children in September and October but not at all in November because he hadn't requested them. Appellee did deny appellant's request for the boy on October 17 because appellant wanted to take his son squirrel hunting and appellee thought it was inappropriate to ask for just one child. She also thought her son was too young to be taken on a hunting trip. Appellant wanted to take the children trick or treating on a non-visitation weekend but appellee refused to let them go; she had told her son he could not go trick or treating that year because he had stolen a gun from a department store. Appellee testified appellant has harassed her and used vulgar language in front of the children and gave his daughter a doll with a penis. She also stated appellant spit on her twice, at least one time with the children present.

The trial court denied appellant's petition for contempt and instead issued a new visitation Order limiting appellant's visits with his children to one day a month under supervision by Children and Youth Services (CYS). The judge ordered both parties to attend parenting classes offered by CYS, thereafter permitting more frequent visitation by appellant if CYS believed it would benefit the children. He would also be permitted visitation with the children without CYS supervision if the agency thought it was appropriate and within the children's best interest. It is from this Order appellant appeals raising four issues: 1) whether the trial court abused its discretion in not holding appellee in contempt; 2) whether the termination of the prior visitation/custody Order was in the best interest of the children; 3) whether the new Order which limited appellant's

[ 376 Pa. Super. Page 178]

    visitation to one day per month was the least restrictive alternative; and 4) whether the issue of modification of the prior custody/visitation Order was properly before the court and was appellant denied due process thereby.

We disagree with appellant's first claim that the trial court abused its discretion by not holding appellee in contempt. A trial court's finding on a contempt petition is not going to be disturbed absent an abuse of discretion. Kozlowski v. Kozlowski, 362 Pa. Super. 516, 524 A.2d 995 (1987). In Mellott v. Mellott, 328 Pa. Super. 200, 476 A.2d 961 (1984), the wife allowed her children to go away on several weekends which were scheduled for visits by the father. We upheld the trial court's finding of noncontempt by stressing we place great reliance on the trial judge's discretion. We have considered the testimony of both parties and can find no reason to call the court's decision an abuse of discretion. Appellee denied appellant's requests for the children twice -- once because she disapproved of her five year old son going squirrel hunting and once, which was not appellant's weekend for visitation, because her son could not go trick or treating as punishment for stealing. Thus we believe the trial court was correct in rejecting appellant's contempt petition.

We agree with appellant, however, that the trial court improperly vacated its April 7, 1986 ...

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