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DENISE DOLAN v. THOMAS D. DOLAN (10/05/88)

filed: October 5, 1988.

DENISE DOLAN
v.
THOMAS D. DOLAN, JR., APPELLANT



Appeal from the Order entered in the Court of Common Pleas of Cambria County, Civil Division, No. 1986-480

COUNSEL

James Pappas, Johnstown, for appellant.

Mark A. Gregg, Johnstown, for appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Tamilia

[ 378 Pa. Super. Page 322]

Appellant-father appeals an Order dated January 12, 1988 denying his petition to modify the custody and visitation Order of July 21, 1986 and refusing to disturb the enrollment of the parties' daughter in Forest Hills School District, Cambria County, Pennsylvania, until further order of the court. The Order also provided there would be no interference with the religious training of the parties' children at Holy Name Church when the father has visitation and custody.

The factual and procedural history surrounding this appeal follows. The parties to this custody action were married in 1980. Two children were born of the marriage, Jessica Marie Dolan, born July 22, 1982, and Thomas Dennis Dolan, born November 26, 1983. On February 28, 1986, the appellant-mother filed a complaint in divorce which included a count seeking custody of the two children. A custody Order was entered on July 21, 1986, awarding primary custody to the mother and shared legal custody to the father, with the father to have custody essentially on weekends, alternate holidays and two nonconsecutive weeks during the summer. The custody Order also stated, "3. The legal right to make major decisions affecting the best interests of the children including but not limited to medical, religious, and educational decisions, is hereby awarded to both parents." This appears to be an appropriate Order under the Rules of Civil Procedure, ACTIONS FOR CUSTODY,

[ 378 Pa. Super. Page 323]

PARTIAL CUSTODY AND VISITATION OF MINOR CHILDREN, Rule 1915.1(b).

A divorce decree was entered on October 2, 1986 and a marriage settlement agreement, dated July 16, 1986, was incorporated by reference into the decree. The agreement, essentially the same as the July 21st Order, provided the parties would have shared legal and physical custody of the children, with the mother to be the principal physical custodial parent. The father was to have the same physical custody as granted in the July 21, 1986 Order. The only substantive difference between the agreement and the Order was the inclusion of Paragraph 3, as specified above, in the Order. Such an inclusion would, of course, supersede the agreement since incorporation into the divorce decree and a petition for a custody Order gave the court the power to modify the terms of the agreement in the best interest of the child. As such, the Order superseded the agreement. At 23 P.S. ยง 401.1 of the Divorce Code, an amendment, effective February 12, 1988, providing: "(b) A provision of an agreement [whether incorporated or merged into the divorce decree or not] regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances", codifies the power of the court to modify an agreement of the parties, in the best interest of the child, when called upon to do so. While this section was not enacted into law at the time of the original Order, case law existed empowering the court to act. See Supko v. Monoskey, 314 Pa. Super. 469, 461 A.2d 253 (1983).

On May 7, 1987, the father filed a " PETITION TO MODIFY CUSTODY AND VISITATION ORDER " in which he stated Jessica would be five years old on July 22, 1987 and would begin kindergarten in the fall of 1987.*fn1 The petition indicated appellant's preference for Jessica's attendance at Holy Name School, a Catholic facility located in

[ 378 Pa. Super. Page 324]

Ebensberg, several miles from the mother's home, while the mother intended to enroll the child in the public school, Forest Hills School, which was within walking distance of her home. The trial court, by the Order in question, ...


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