HomeMy WebLinkAbout2005-2757 Civil
ROBERT E. BINGAMAN, JR. : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CIVIL ACTION – LAW
: NO. 05-2757 CIVIL
KELLY H. BINGAMAN, :
Defendant : IN CUSTODY
IN RE: OPINION PURSUANT TO RULE 1925
Robert E. Bingaman, Jr. (father) and Kelly H. Bingaman (mother) are the natural parents
of Drew M. Bingaman (son), born April 17, 1989. A complaint for custody was filed by father
on May 25, 2005. Following conciliation, this court, on August 4, 2005, entered an order
providing that the parties were to have shared legal custody of their son, with each having an
equal right to make all major non-emergency decisions affecting the child’s general well-being.
The parties were also to have shared physical custody arranged on an alternating week basis, and
were to participate in therapeutic family counseling.
Mother filed a petition for contempt of order of court on March 16, 2006. She claimed
that father was no longer requiring son to stay with mother during the alternating weeks, and that
father has been refusing to participate in the therapeutic counseling. A second conciliation
conference was held by Melissa Greevy, Esquire, Custody Conciliator. On May 24, 2006, this
court entered an order of court which ratified and confirmed the order of August 4, 2005, but
temporarily suspended the alternating week physical custody provision of the order. The parties
were further directed to cooperate in scheduling and attending counseling sessions with the hope
of resuming meaningful regular contacts/custody between mother and Drew, and the parties were
directed to follow the recommendations of the counselor.
NO. 05-2757 CIVIL
On November 10, 2006, mother filed a petition for civil contempt for disobedience of
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custody order. In the petition, mother claimed that father was in violation of the May 25 order
by not forcing Drew to visit with mother during all the times the counselor had recommended.
A third conciliation conference was held and we entered yet another order on January 24, 2007.
It provided that mother was to have partial physical custody on Mondays and Wednesdays from
5:00 p.m. until 8:00 p.m., and Saturdays from 5:00 p.m. until Sunday at 2:00 p.m.
A hearing was held on the mother’s allegations of contempt on May 31, 2007. We found
the testimony of father to be credible and dismissed the contempt petition. Mother has filed an
appeal. In her statement of matters complained of, the mother asserts that this court abused its
discretion in denying the motion for contempt and not finding father in contempt of court.
According to 23 Pa.C.S.A. Section 4346(a), “[a] party who willfully fails to comply with
any visitation or partial custody order may, as prescribed by general rule, be adjudged in
contempt.” Based on the testimony given by father, mother, and son at the May 31, 2007
hearing, it is clear that the father is not in contempt of court for failing to abide by the custody
order. Both father and son testified that father never told son not to visit mother. (N.T. 61, 83.)
To the contrary, father took steps to enforce visits between son and mother. Father admitted that
there were times when son was sick and would not make the required visits, and that son would
occasionally miss a few hours of his visits. (N.T. 66.) In addition, the father’s control over his
son was not absolute. Drew was seventeen years old and provided his own transportation. (N.T.
66.)
The testimony also revealed that mother was both physically and verbally abusive
towards son during his visits. The police had to be called to mother’s house after son reported
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NO. 05-2757 CIVIL
that he was being abused by mother. (N.T. 62-63.) Son allegedly was grabbed around the neck
by mother. (N.T. 63.) Mother would also shout and argue with son and father at counseling
sessions, to the point where the counselors thought further sessions would not be helpful. (N.T.
64, 65.) Son testified that there were times when he would visit mother and she would lock
herself in a room, or come into his bedroom screaming in the middle of the night. (N.T. 83.)
There were also times when mother would send son home during the middle of a visit. (N.T.
66.)
In light of the testimony at the May 31, 2007 contempt hearing, we find that father made
reasonable efforts to have son (who is now eighteen years old and is not subject to any custody
order) visit mother pursuant to the custody orders, and did not willfully disregard or fail to
comply with the custody orders. We therefore properly declined to find father in contempt.
October 5, 2007 _________________________________
Kevin A. Hess, J.
Joseph D. Caraciolo, Esquire
For the Plaintiff
Douglas R. Goldhaber, Esquire
For the Defendant
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