Appeal from the Order entered December 8, 1987 in the Court of Common Pleas of Erie County, Civil Division, at No. 1315 - A - 1986.
Cathy M. Lojewski, North East, for appellant.
Robert C. Ward, Erie, for appellee.
Cavanaugh, Johnson and Hoffman, JJ. Johnson, J., concurs in the result.
[ 383 Pa. Super. Page 376]
This appeal is from an order of the Court of Common Pleas of Erie County holding appellant-mother in contempt and awarding physical and legal custody of a minor child to appellee-father. Appellant contends that (1) a custody order entered by a Pennsylvania court was later modified by an order of a West German Court thereby divesting Pennsylvania courts of the authority to hold appellant in contempt; (2) the court below lacked in personam jurisdiction and venue; and (3) the court abused its discretion in holding appellant in contempt. For the reasons that follow, we affirm the order below.
[ 383 Pa. Super. Page 377]
This custody battle has been waged on three fronts: Philadelphia, Pennsylvania, Erie, Pennsylvania, and the Federal Republic of Germany. For the sake of clarity, the proceedings in each venue will be discussed separately even though at times they have coincided. The parties were married on February 16, 1980, in Luzerne County, Pennsylvania, and they had one child, Henry John Goodman, who was born July 21, 1980, in Philadelphia. Until the parties separated on May 16, 1981, they and the minor child continued to reside in Philadelphia. On May 29, 1981, a custody action was commenced by appellant in the Court of Common Pleas of Philadelphia County (hereinafter "the Philadelphia Court"). See Lower Court Memorandum and Order, November 17, 1987 at 2. In the meantime, appellant-mother and Henry John had moved from the marital residence to the home of appellant's parents in Pottstown, Pennsylvania, where they lived through June 1981.
As of July 1, 1981, appellant, who is a physician in the United States Army, was to be stationed at Walter Reed Army Medical Center in Washington, D.C.; at the end of June 1981, she and the child moved to Silver Spring, Maryland. The parties were divorced by a decree entered by the Philadelphia Court on May 4, 1982. Approximately sixteen months later, on August 29, 1983, the court entered, by stipulation, a temporary order awarding primary physical custody of Henry John to appellant and awarding partial physical custody on alternate weekends to appellee. The proceedings before the court continued as follows:
At about the same time, protracted hearings on the issue of custody began in earnest.
Throughout this time, Mother . . . failed to abide by the Court's order for partial custody in Father.
Father filed several Petitions for Contempt . . . .
On May 13, 1985, when Mother and Father were personally before [the] Court, [the Court] entered another temporary partial custody order in favor of Father and also colloquied Mother with respect to her obligation to comply with the Order. In addition, and because of a
[ 383 Pa. Super. Page 378]
suggestion raised by Father that Mother intended to flee the jurisdiction by obtaining new Orders from her employer, the United States Army, [the Court] questioned Mother as to her residence, intentions for residence, transfer intentions, etc. and provided that she be personally served that very day with notice of further hearing in the matter for July 3, 1985. At all times, Mother informed me that she intended to return to the Court on July 3, 1985 for further, and [the Court] had hoped final, hearings in the matter.
Nonetheless, Father learned that Mother was indeed intending to flee the jurisdiction and on June 27, 1985, and in my absence, Judge Posarina of this Court entered an Order placing physical custody of the child with Father and directing the sheriffs to enforce that Order. This Order was entered after specific findings as to Mother's intention to remove the child from the jurisdiction of the Court.
Lower Court Memorandum and Order, November 17, 1987 at 1-3.
The next hearing in this case was held on July 3, 1985, as had been previously arranged. Appellant, however, failed to attend, even though she had told the court that she would be present. N.T. May 13, 1985 at 46; N.T. July 3, 1985 at 2-3. Further, appellant had notice of the hearing, as the court had informed her of it during the May 13 hearing, by mail, and again, during a telephone conversation. N.T. July 3, 1985 at 2-3. Appellee also had mailed notices of the hearing to appellant, which were returned, having been postmarked "Return to sender. Moved. Left no address." Id. at 4; see also Exhibits P-1 to P-6, July 3, 1985 (included in record in Goodman v. Goodman, No. 81-13692, appeal docketed, 3436 PHL 87 (appeal filed Dec. 11, 1987)). At the July 3 hearing, appellee
produced evidence showing that Mother was intending to remove the child to the Federal Republic of Germany and [the Court] entered Orders on July 3, 1985, setting forth the history of the matter, Mother's failure to appear and
[ 383 Pa. Super. Page 379]
placing custody of Henry Goodman with Father. [The Court] directed that different Orders be served on both the Department of State of the United States of America and the United States Army, and [the Court] also found Mother to be in contempt of several Orders of this Court and fined her for her obdurate and vexatious conduct. The Order placing custody in Father was reaffirmed and [the Court] directed that the legal authorities assist in the enforcement of this Order.
Lower Court Memorandum and Order, November 17, 1987 at 3-4. Additionally, the court ordered that appellant would have the opportunity to purge herself of the contempt by appearing at the next scheduled hearing. N.T. July 3, 1985 at 21-22.
On October 9, 1985, the Philadelphia Court held another custody hearing at which appellant was neither present nor represented by counsel. Both the court and appellee had mailed notices of the hearing to her. N.T. October 9, 1985 at 2-3. During the hearing, the court was specifically informed that appellant knew even before the May 13 hearing that she was to be reassigned overseas as she had applied for an overseas transfer on April 2, 1985, received the notice of reassignment on April 8, and received authorization to take the child with her on April 26. Id. at 5-6; see also Exhibit 6 (April 2, 1985 reassignment request; April 8 reassignment order; April 26 authorization for concurrent travel for dependent Henry John Goodman). According to her reassignment orders, appellant was to have reported overseas between June 27 and July 1, 1985, see Exhibit 6. We note that appellant's whereabouts during both the July 3 and October 9 hearings were confirmed by appellant in her appellate brief: she was in West Germany, having departed on May 15, 1985 and arriving there the following day. Brief for Appellant at 6. In other words, she departed just two days after the May 13 hearing at which she had assured the Philadelphia Court that she would attend the next scheduled hearing. N.T. May 13, 1985 at 46; Lower Court Memorandum and Order, November 17, 1987 at 1-3.
[ 383 Pa. Super. Page 380]
The court considered several sanctions against appellant for her continued failure to comply with the then-temporary custody order and her apparently willful disregard of the court's authority and process. The court entered a final order awarding physical and legal custody of Henry John to appellee under the supervision of the Erie County Department of Human Services and reserved decision on other outstanding sanctions and petitions. See Lower Court Opinion, February 3, 1989 at 3 (included in record in Goodman v. Goodman, No. 81-13692, appeal docketed, 03436 PHL 1987 (appeal filed Dec. 11, 1987)); Lower Court Memorandum and Order, November 17, 1987 at 4-5; N.T. October 9, 1985 at 9-16; Lower Court Order, October 9, 1985. No appeal was taken from the order of October 9, 1985.
Some twenty-five months later, on November 17, 1987, the Philadelphia Court issued a Memorandum and Order for the purpose of explicating its prior order dated October 9, 1985.*fn1 The issuance of that order seemingly was an accommodation to the West German Courts, as the lower court states,
The German courts were confused as to the notation 'decision reserved' on our order of October 9, 1985; in particular, they wondered about whether the order granting [custody to] Mr. Goodman was a final order. Therefore, on November 12, 1987, we entered an order solely for the purpose of clarifying previous actions and orders of this Court.
Lower Court Opinion, February 3, 1989 at 2. On November 17, 1987, the following order was recorded by the court:
1. That physical and legal custody of Henry John Goodman was awarded to his Father, Paul Goodman, on October 9, 1985;
2. That Mother has been found in contempt of this Court and that in over two years she has taken no steps to purge herself of this contempt.
[ 383 Pa. Super. Page 3813]
That Mother has continued to refuse to comply with the custody order of this Court entered October 9, 1985.
4. That bench warrants for the arrest of Mother are outstanding in this Commonwealth, and that the Court hereby requests the lawful authorities of other jurisdictions to assist in the enforcement of the Orders of this Court dated June 27, 1985, July 3, 1985, October 9, 1985, and this date in that the law enforcement authorities or other jurisdictions are specifically requested to obtain the minor child, Henry Goodman, remove said child from the physical possession of his Mother, and return said minor child to the lawful custody of his Father in this jurisdiction.
Lower Court Memorandum and Order, November 17, 1987 at 5-6. An appeal from the November 17 order currently is pending in this Court. See Goodman v. Goodman, No. 81-13692, appeal docketed, 3437 PHL 1987 (appeal filed Dec. 11, 1987).
Concurrent with the Philadelphia County proceedings, the Court of Common Pleas of Erie County (hereinafter "the Erie Court") was grappling with this case. The Erie Court became involved when appellee, who had relocated in Erie County, petitioned that court to register the final Philadelphia custody order of October 9, 1985. The court granted the petition. See Lower Court Order, April 7, 1986. Thereafter, on October 15, 1987, appellee filed a contempt petition, along with a notice and order to appear. After a hearing, held on November 16, 1987, at which appellant was represented by counsel but from which she was absent, the Erie Court granted appellee's petition.*fn2 Appellant then filed a request for reconsideration, which was denied. On December 8, 1987, the Erie Court entered the following contempt order:
1. Physical and legal custody of Henry John Goodman is again awarded to the father, Dr. Paul H. Goodman.
[ 383 Pa. Super. Page 3822]
. Mother is in contempt of this Court and in over two years has taken no steps to purge ...