Brady v. Brady

34 Pa. D. & C.4th 445
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 25, 1996
DocketD.R. no. 82-16516
StatusPublished

This text of 34 Pa. D. & C.4th 445 (Brady v. Brady) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Brady, 34 Pa. D. & C.4th 445 (Pa. Super. Ct. 1996).

Opinion

WATKINS, J.,

HISTORY OF THE CASE

The parties in this case, Shaun Brady and Theresa Brady, are the parents of two sons and one daughter, Sean, Christopher and Shannon. These parents have been engaged in disputes involving custody and support over 13 years. The court record reflects that during this time period, Father has filed three petitions to modify visitation and two petitions for contempt of custody.

Father initially filed a complaint for partial custody on March 30, 1983. A custody order was entered by agreement on August 27, 1983, pursuant to which Mother was given primary custody of the minor children and Father was afforded visitation at certain specified dates and times.

On February 26, 1985, Father filed his first petition to modify visitation. Subsequent thereto, the parties again reached an agreement and an amended custody order was entered on April 30, 1985.

Less than a year later, the husband filed his second petition to modify visitation, dated April 28, 1986. As before, the record reflects that an agreement was reached and that the petition was withdrawn.

The disputes did not end, however. The husband filed yet another petition to modify visitation, the third, on April 19, 1988. Once again, however, the parties seemingly resolved their differences and an order by agreement was entered on July 6, 1988. A copy of this order is appended as exhibit no. 1.

[448]*448Asserting that Mother did not abide by the terms of the 1988 order, the husband filed the first of two petitions for contempt of custody on April 19, 1994. When the matter came to hearing as scheduled before the Honorable Stephen Levin on May 12, 1994, Father inexplicably failed to appear. Judge Levin ultimately dismissed the petition.

In doing so, Judge Levin addressed the issues raised. At the hearing, Judge Levin was advised that neither of the parties’ two sons wanted to visit with Father as permitted under the 1988 custody order. After evaluating the circumstances presented, Judge Levin expressly authorized the two sons to make final decisions regarding visitation. A copy of the transcript from the hearing before Judge Levin is attached as exhibit no. 2.

Raising the same identical issues, Father filed his second petition for contempt of custody on June 9, 1995. As before, this was predicated upon allegations that Mother was in violation of the July 6,1988 custody order. The matter came to hearing before the Honorable Thomas Watkins on November 14,1995 and the petition was denied.

Father takes an appeal from this court’s order denying the contempt petition.

STATEMENT OF THE FACTS

The parties are the parents of one adult daughter, Shannon Brady, and two teenage sons, Sean and Christopher. Shannon, who was age 19 as of the date of the hearing, was not the subject of the petition. The petition pertained exclusively to visitation with the two teenage sons, Sean and Christopher, ages 15 and 14, respectively.

[449]*449It is undisputed that neither Sean nor Christopher wishes to continue visitation with Father. Longstanding conflicts have developed between the teenage sons and Father and both have been to mediation and counseling without any success. (See Record, November 14, 1995 at 14,20.) Unrebutted testimony was elicited that Father was a reformed alcoholic and that the two sons had resisted prior visitation. An incident was described exemplifying the existing conflict.1

It was brought to light that the two teenage sons were present at the hearing before Judge Levin on May 12, 1994 and testified before the court at that time concerning their reluctance to visit Father. (Record, November 14, 1995 at 14.) This is reflected in the trial transcript from that date.

While testimony was presented establishing that the teenage sons actively resisted visiting Father, no evidence was presented that Mother had impeded the visitation schedule or had otherwise attempted to undermine the parental relationship between Sean and Christopher and Father. To the contrary, credible testimony was elicited concerning Mother’s efforts to compel the two teenage sons to continue to visit Father.

After considering the testimony, the court ultimately denied the contempt petition finding that it lacked basis and was entirely devoid of merit. In so holding, the court found that Mother did not violate the terms of the order and that the two teenage sons made a willing decision to limit visitation attributable to serious differences and disputes with Father that have thus far [450]*450been unreconcilable following considerable efforts including counseling and mediation.

LEGAL ANALYSIS

The power to hold parties in contempt of court for failing to abide by partial custody or visitation orders is conferred upon the court pursuant to 23 Pa.C.S. §4346. As promulgated by the legislature, the requisite standard for a contempt finding is a willful failure to comply with a custody or visitation order.

It is well recognized that a contempt finding cannot be entered unless the alleged contemnor had knowledge of the order which is said to have been violated and unless such order is specific and definite. In re Rubin, 378 F.2d 104 (3d Cir. 1967). This precept has been adopted by the courts in this Commonwealth and a four part standard was initially delineated in Fenstamaker v. Fenstamaker, 337 Pa. Super. 410, 487 A.2d 11 (1985), a case which dealt with direct criminal contempt pursuant to 42 Pa.C.S. §4132(2).

In accordance with the standard, the following elements are necessary to support a finding of contempt:

“(1) The order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited[;]
“(2) The contemnor must have had notice of the specific order or decree;
“(3) The act constituting the violation must have been volitional; and
“(4) The contemnor must have acted with wrongful intent.” Fenstamaker, supra at 416, 487 A.2d at 14.

While Fenstamaker applied the standards under a specific criminal statute, the Superior Court recognized [451]*451its utility and expanded its applicability by incorporating it in the context of contempt of custody proceedings in Sutliff v. Sutliff, 361 Pa. Super. 194, 201, 522 A.2d 80, 83-84 (1987). Thus, the requisites are highly relevant to the case at bar.

In view of the foregoing precepts, the court turns to the custody agreement upon which the contempt petition is predicated. It is incorporated into an order of court and provides:

“And now, My 6, 1988, it is agreed by and between Shaun Brady, plaintiff, and Theresa Brady, defendant, that the court enter a custody determination and order that Theresa Brady have custody of the children, Shannon, Sean, Christopher.

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Related

Mellott v. Mellott
476 A.2d 961 (Supreme Court of Pennsylvania, 1984)
Sutliff v. Sutliff
522 A.2d 80 (Supreme Court of Pennsylvania, 1987)
Fenstamaker v. Fenstamaker
487 A.2d 11 (Supreme Court of Pennsylvania, 1985)
In re Rubin
378 F.2d 104 (Third Circuit, 1967)

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Bluebook (online)
34 Pa. D. & C.4th 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-brady-pactcomplphilad-1996.