Brocker v. Brocker

241 A.2d 336, 429 Pa. 513, 1968 Pa. LEXIS 834

Opinions

Opinion by

Mr. Chief Justice Bell,

This is an appeal from a contempt Order issued by the Court of Common Pleas of Butler County, Pennsylvania. The Order held Dr. Brocker, the appellant, to be in contempt of Court for failure to comply with áhd obey its-Custody Order of June 18, 1965, . requiring Brocker to return his minor children to their mother at 'the end of a summer visitation period. This case has been rendered difficult because, inter alia, of the many diverse and offsetting motions by each of the parties, the sequence of events, and the material differences between Brocker’s two counsel.

The Facts

Dr. and Mrs. Brocker were divorced by the Court of Common Pleas of Butler County on October 15, 1964. At that time Mrs. Brocker was a resident of and was domiciled in Butler County, and Dr. Brocker was a resident of Ohio. The Order granting the divorce incorporated the written agreement of the parties for the custody and support of their six minor children. It pertinently provided: “Wife shall have the custody, care and charge of all the children of the parties herein in accordance with the existing Orders of the Common Pleas Court of Butler County, Pennsylvania, or as they shall be changed or amended from time to time; and for this purpose the parties herein agree and submit themselves to the continuing jurisdiction of the Common Pleas Court of Butler County, Pennsylvania, which Court shall have jurisdiction over all matters relating to the custody of said minor children, regardless of the residence or domicile of the parties herein or their children, outside the geographic jurisdiction of said court.”

Footnotes

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The aforesaid Order of the Butler County Court dated October 15, 1964 was amended by it on June 18, 1965, sur the Petition of Dr. Brocker (the father and husband), to provide that the Father (who is the present appellant) shall have custody of the six children during the summer vacation periods, commencing on the fifth day after the end of the spring school term and ending five days prior to the beginning of the fall term.

In accordance with this Amended Order, the children were delivered to the Father five days after the end of the spring school term, to spend the summer at his residence in Ohio. At the end of the summer vacation period, the Father failed to return the children to their Mother (who continued to live in Butler County, Pennsylvania), as required by the aforesaid Amended Order of the Court.

On August 10, 1966, the Father presented to the Court of Common Pleas of Butler County a Petition for modification of that Court’s aforesaid Amended Custody Order. His Petition alleged the unfitness of the Mother and prayed that permanent custody of the children be awarded to him. The Court thereupon issued a Rule upon the Mother to show cause why permanent custody of the children should not be given to the Father, and a guardian ad litem was appointed by the Court to represent the rights, interests and welfare of the children. The Rule was returnable October 11, 1966, which would havé been more than a month after the children should have been returned to their Moth-, er, i.e., five days prior to the beginning of the fall term of the new school year. The record then impliedly indicates that on August 25, 1966, Dr. Brocker instituted proceedings in the State of Ohio for the custody of the children; the record does not disclose whether the Mother appeared in said action either personally or through counsel, or what, if any, action was taken by the Ohio Court. '

On August 12, 1966 (prior to Dr. Brocker’s above-mentioned custody Suit in Ohio on August 25), the Mother filed a Petition with the Butler County Court (1) praying that her former husband be held in contempt for failure to pay support for their children as required by the Order of that Court, and (2) praying for an increase in the Court’s original Support Order. A Rule to show cause was issued on Brocker and a hearing was held on August 30, 1966, at which Dr. Brocker’s Butler County attorney Gilchrist entered his appearance. During the course of this hearing, counsel for the Mother presented another Petition to that Court praying that Brocker be held in contempt for. his failure to return the children to her on August 25, 1966 pursu-. ant to the aforesaid Amended Custody Order of the Butler County Court, and that an attachment issue.

On August SI, after the conclusion of this hearing, the Butler County Court modified its Support Order, by increasing the amount of support to $150 a month' for each child. The next day, September 1, 1966, that Court issued a Rule on Dr. Brocker to show cause why he should not be held in contempt for failure to return their children to their Mother. This Rule was returnable on the. afternoon of the following day, namely September 2nd. The Court obviously was concerned about having the children returned to the Mother in time for the new school year, and this occasioned the prompt scheduling of a hearing. While the record is not clear as to exactly what happened thereafter, the Court continued the hearing on the Rule until Tuesr day, September 6, at 4:00 P.M. However, neither Brocker nor his counsel appeared at the hearing. on September 6. The Court thereupon entered a Contempt. Order which (1) assessed a penalty against Brocker in. the amount of $25,000 payable to the County, and (2) . provided for commitment of Brocker to prison pending compliance, and (3) further provided: (‘The penalty is hereby remitted if the defendant purges himself of his ■ contempt by obedience to the orders of this Court within five days from this date [September 6, 1966] P From this Contempt Order, Brocker took this appeal. .

Contempt

In order to properly evaluate. appellant’s, contentions, it is necessary to briefly review the law with respect to contempt and its divisions, which are sometimes obscure.

The Courts have always possessed the inherent pow.-. ér to enforce their Orders and Decrees by imposing penalties and sanctions for failure to obey or comply therewith. Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A. 2d 270; Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669; Michaelson v. United States, 266 U.S. 42; Green v. United States, 356 U.S. 165; United States v. United Mine Workers of America, 330 U.S. 258; Commonwealth ex rel. v. Perkins, 124 Pa. 36, 16 Atl. 525; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa. Superior Ct. 7, 174 Atl. 11; Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 157 Atl. 27.

Contempt is divided legally into two classes: (1) Civil Contempt and (2) Criminal Contempt, (a) direct, contempt and (b) indirect contempt. Knaus v. Knaus, 387 Pa., supra; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., 392 Pa. 500, 140 A. 2d 814; Commonwealth ex rel. Beghian v. Beghian, 408 Pa., supra; Marco Industries, Inc. v. United Steelworkers of America, 401 Pa. 299, 164 A. 2d 205.

The dominant purpose and objective of the Court’s Order is the controlling factor in the determination of whether the contempt was civil or criminal. Not only is the dividing line between civil and criminal contempt sometimes shadowy or obscure, but ■ the same facts or conduct may constitute or amount to both civil and criminal contempt. United States v. United Mine Workers of America, 330 U.S., supra. Moreover, it is clear that a Court can for présent oh past 'acts-of misbehaviour amounting to civil contempt impose an unconditional' compensatory finé and/or á conditidiial fine and imprisonment, and such fine may be pay able to the United States or to tbe Commonwealth or to the county or to the individual who was injured. United States v. United Mine Workers of America, 330 U.S., supra; McComb v. Jacksonville Paper Co., 336 U.S. 187; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418; Commonwealth ex rel. Beghian v. Beghian, 408 Pa., supra; Parker v. United States, 126 F. 2d 370.

In Parker v. United States, the Court said (page 380) : “It is well settled, however, that the court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved, litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender. Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 448, 449, 31 S. Ct. 492, 55 L. Ed. 797, 34 L.R.A., N.S., 874; Lamb v. Cramer, 1932, 285 U.S. 217, 220, 221, 52 S. Ct. 315, 76 L. Ed. 715; Merchants’ Stock & Grain Co. v. Board of Trade, 8 Cir., 1912, 201 F. 20, 30; Delaware, L. & W. R. Co. v. Frank, 2 Cir. 1916, 230 F. 988; American Graphophone Co. v. Walcutt, C.C.S.D.N.Y. 1898, 86 F. 468; Kreplik v. Couch Patents Co., 1 Cir., 1911, 190 F. 565, 569; Raymor Ballroom Co. v. Buck, 1 Cir. 1940, 110 F. 2d 207, 211; Aerovox Corp. v. Concourse Electric Co., 2 Cir. 1937, 90 F. 2d 615, 617; Lineker v. Dillon, D.C.N.D. Cal. 1921, 275 F. 460, 470, 476.”

In United States v. United Mine Workers of America, 330 U.S., supra, the Supreme Court held that the trial Court properly found John L. Lewis guilty of indirect criminal contempt and the Union guilty of both civil and criminal contempt. The Court sustained a fine of $10,000 against Lewis for criminal contempt, but modified the fine imposed by the lower Court upon the Union. The Supreme Court ordered the Union (a) to pay a fine of $700,000 and (b) to pay an additional fine of $2,800,000 unless tbe Union complied with the lower Court’s temporary restraining Order and preliminary injunction within five days of the Supreme Court mandate. The Court said, inter alia (pages 298-299, 303-304) : “Common sense would recognize that conduct can amount to both civil and criminal contempt. . . . The trial court also properly found the defendants guilty of civil contempt. Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the courfs order, and to compensate the complainant for losses sustained. Gompers v. Bucks Stove & Range Co., supra, at 448, 449. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy.

“But where the purpose is to make the defendant comply, the court’s discretion is otherwise exercised. It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.

“It is a corollary of the above principles that, a court which has returned a conviction for contempt must, in fixing the amount of a fine to be imposed as a punishment or as a means of securing future compliance, consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.”

The Contempt Order

. Commonwealth ex rel., Beghian v. Beghian, 408: Pa,, supra, is analogous to the .facts in the instant case. In the"Beghian case, temporary custody of two minor children during the summer months was awarded to. their father, who lived in Italy. He. refused to return the children at the end. of the summer, whereupon the Court of Common Pleas of. Allegheny County held the father in both criminal and civil contempt. On appeal, .this Court held that , the father’s willful violation of the-,custody order constituted civil, but not criminal contempt. The Court said (pages 411-412) : “. . . The problem most often presented in contempt cases is whether it is.Criminal or civil, and perhaps it is more difficult to distinguish between civil and indirect criminal .contempt. It is therefore necessary - to refer to the essential purpose of the proceeding. In Knaus v, K-naus, 387 Pa. 370, 376, 127 A. 2d 669, 672 (1956), it was said: ‘The dominant purpose of a contempt proceeding- determines whether it is, civil-or criminal. If the dominant-.purpose is to vindicate the dignity and authority- of the court and to protect the interest of the general public, it is a proceeding for criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from doing some, act ordered or prohibited primarily for the benefit of a private party, proceedings .to enforce .compliance with the decree of the court are civil in nature. The purpose of .a civil contempt proceeding is remedial, and judicial sanctions are’employed (1)’ to coerce the defendant Into ■ compliance with the- court’s order, and (2) in some instances to' compensate the-complainant for losses sustained: United States v. United Mine Workers of America, 330 U.S. 258, 303. A judgment in a civil contempt proceeding for the benefit of a private plaintiff will, of course, incidentally vindicate the authority of the court just as on the other hand a criminal contempt judgment, which is punitive, inay often advance private interests. But the test is the dominant purpose, not the incidental result: Gompers v. Bucks Stove & Range Company, 221 U.S. 418, 441.’”

In Knaus v. Knaus, 387 Pa., supra, the Court said (page 375) : “A direct criminal contempt consists of misconduct of a person in the presence of the court, or so. near thereto to interfere with its immediate business, and punishment for such contempts inay be inflicted • summarily: Act of June 16, 1836, P. L. 784, §§23, 24, 17 P.S. §§2041, 2042; Levine Contémpt Case, 372 Pa. 612, 95 A. 2d 222; Snyder’s Case, 301 Pa. 276, 152 A. 33. An indirect criminal contempt consists of the violation of an order or decree of a court which occurs outside the presence of the court: Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania et al., 318 Pa. 401, 178 A. 291; Kegg et al. v. Bianco et al., 151 Pa. Superior Ct. 234, 30 A. 2d 159, The procedural safeguards applicablé to a commitment for an indirect criminal contempt are set forth in the Act Of. June 23, 1931, P. L. 925, §1, 17' P.S. §2047, which' requires admission to bail, notice, a reasonable timé to make a defense and affords trial by jury. Section 2 of that Act (17 P.S. §2048) limits punishment to a maximum of á fine of $100, or imprisonment for' fifteen (15) days, or both.”

In this case it is clear that Brocker was guilty not of criminal contempt but only of civil contempt—Mrs. Brocker, the children’s Mother, will benefit primarily from compliance with the Court’s Order (even though the' fine was payable to the County) and the dignity and authority of the Court will be incidentally vindicated.

Notice

Appellant Brocker contends he cannot be held in contempt of the Court’s Amended Order of June 18, 1965, because he had no notice, or no adequate notice, of the Court’s contempt hearing on September 6, 1966. We.need not decide whether he was entitled to notice of this hearing on September 6, 1966, and if so whether the Court’s short notice of the hearing was adequate, because he. was penalized and held in contempt of Court for failure to comply with the Court’s Amended Custody Order of June 18, 1965, of which Brocker was fully cognisant. Appellant has never offered any legal justification for his failure to comply with this Amended Order, nor has he offered to now comply therewith.

Jurisdiction

While a Custody Order or Decree is always subject to modification or complete change by the proper Court, acting in the best interest and for the best welfare of the children, it cannot be ignored or violated by one of the parties at his (or her) whim, or changed by another Court unless that Court had both appropriate and constitutionally recognized jurisdiction. While it is a general rule that the domicile or residence— even temporary residence—of a child is sufficient to give jurisdiction to the Court of the County of such residence, the law on the subject of jurisdiction in child custody cases is conflicting and needs clarification and certainty.

In the instant case, both parents agreed that “the Common Pleas Court of Butler County should have continuing jurisdiction over all matters relating to the custody of their minor children, regardless of the residence or domicile of the parties ... or their children, outside the geographic jurisdiction of said court” The interpretation of this Agreement by the dissenting Judges distorts and nullifies this language. Moreover, under all the facts in this case, especially when there is no proof of changed circumstances, Comity alone should prevent an Ohio Court from interfering with or changing the Amended Custody Order of the Butler County Court. Even more important, the Full-Faith-and-Credit clause of the Constitution of the United States—Article IV, §1—would seem to require every Court in Ohio to give full faith and credit to the Pennsylvania Court’s Custody Order and, in the absence of substantial and important changed circumstances, an Ohio Court should not be permitted to ignore or nullify or modify the Pennsylvania Court’s Custody Order. Were the law otherwise, all a parent would have to do would be to move to another State (or from State to State) and keep or steal the children. The result (1) would be frequent litigation in different Courts in the different States, with conflicting Court Orders which would inevitably have a disturbing and detrimental effect upon the welfare of the children,* and (2) would greatly diminish the respect of the public for all Courts, and (3) most important of all, would make a mockery of, and in practical effect obliterate, the Fuli-Faith-and-Credit clause of the Constitution. This we will not permit!

Under the facts and circumstances of record, the Court of Common Pleas of Butler County did not err in holding Brocker in contempt of Court. Brocker obtained possession of the children solely under the visitation privileges granted him in tlie Amended Custody Order of the Butler County' Court of June 18, 1965. Brocker knew that this Amended Custody Order obligated him to return these children, to their, mother in Butler County, Pennsylvania, in time for them to begin (five days prior to the beginning of) the fall term of their school. This he failed to do, nor did he make any justifiable or legal explanation to the But-l'ér County Court (or even to this Court in his present appeal) for his failure to comply .with the Court’s Order.

The Penalty

Finally, appellant argues that the $25,000 penalty constitutes an “inappropriate and illegal” punishment for civil contempt. Compare Knaus v. Knaus, 387 Pa., supra; Com. ex rel. Beghian v. Beghian, 408 Pa., supra; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., 392 Pa., supra.

. . While a Court in a proceeding for civil contempt may impose the remedial punishment of a. fine and make.it payable to an aggrieved litigant as compensation for the losses or damages he may have sustained by reason of the contumacious conduct of the offender, and may also conditionally commit the .defendant to' prison for civil contempt, the penalty of $25,000 in this case was (as we have seen) payable to the County, and it was to be remitted if defendant purged himself of his contempt. See Parker v. United States, 126 F. 2d 370, 380, and numerous cases cited therein; United States v. United Mine Workers of America, 330 U.S., supra; McComb v. Jacksonville Paper Co., 336 U.S. 187; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418; Williamson’s Case, 26 Pa. 9.

Order affirmed; costs to be paid by appellant.

Italics throughout, ours.

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Despite the protestations of a Court which is frequently unintentionally biased in favor of the home town parent, a child has too often become, in custody cases, a mere pawn in a game of chess or, worse yet, a shuttlecock in a game of badminton or of battledore and shuttlecock.