HomeMy WebLinkAbout92-634 Civil (2)MARGARET AGRUSO (READER)
Plaintiff
JOSEPH J. BECHARA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 92-634 CIVIL TERM
IN CUSTODY
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., October 14, 1996.
In the present custody case involving the parties' six-year-
old son, the docket in this court has now extended to its ninth
page. Prior proceedings in New York State contain an order
advising that "[t]he Court has become very familiar with the
difficulties of these parties over the last several months" and
noting that "[t]here is an impossible relationship between the
two.''~ This particular order concluded with a dismissal of "all of
the petitions .herein.''2
With what in retrospect seems to have been an unusual display
of alacrity, the New York Court yielded jurisdiction to this court
of the parties' custody litigation in 1992.3 Many motions,
petitions, conferences and hearings have ensued.
During the course of the proceedings, Defendant, now
Appellant, has conceded that he presented false testimony.4 He was
~ Plaintiff's Petition To Determine Jurisdiction, Exhibit C
(filed March 10, 1992).
Id.
See Order of Court, March 10, 1992.
N.T. 65, Hearing, April 11, 1996.
NO. 92-0634 CIVIL TERM
also adjudicated in contempt in 1995.s
A few months ago, Defendant appealed an order which this court
entered following a hearing on five of the parties' petitions.6
That appeal remains pending in the Superior Court.7
Defendant has now appealed from an order of the court dated
August 9, 1996. This order, inter alia, found Defendant in
contempt, for a second time, and imposed a $300 sanction.8 The
order read as follows:
AND NOW, this 9th day of August, 1996,
upon consideration of Plaintiff's Petition for
Emergency Special Relief/Contempt of Court,
and following a hearing at which the Plaintiff
appeared and was represented by Gregory J.
Katshir, Esquire, and at which the Defendant
did not appear but was represented by James J.
Kayer, Esquire, the Court finds that the
Defendant has intentionally, voluntarily, and
willfully failed to comply with the Order of
Court heretofore entered in this case, and he
is consequently adjudicated in contempt.
The Defendant is directed to pay a fine
in the amount of $300.00, and reasonable
Order of Court, September 7, 1995.
Notice of Appeal, filed May 7, 1996.
In that appeal, Defendant is challenging (a) the court's
failure to order installation of a private telephone line for the
parties' six-year-old son at his mother's residence and (b) the
court's failure to expand Defendant's contacts with the child
beyond "five (5) opportunities in a normal month." Defendant's
statement of matters complained of on appeal, filed May 22, 1996.
The appeal is docketed at No. 0041/HBG96.
8 Defendant has not paid this sum, nor did he pay the
previous sanction for contempt in the amount of $50.
NO. 92-0634 CIVIL TERM
attorney's fees to Plaintiff's counsel in the
amount of $150.00, and to cause the return of
the parties' child to the Plaintiff on Sunday,
August 11, 1996, at 12 noon at the entrance to
Lowe's department store in Altoona,
Pennsylvania, on 17th Street. During the
forthcoming school year, the Defendant's
periods of partial custody are reduced to one
weekend every other month pending further
Order of Court, and Defendant's period of
partial custody during the summer of 1997 and
each summer thereafter pending further Order
of Court is reduced by an additional two
weeks, giving the Plaintiff a total of three
weeks primary custody with the child.
In the event that the Defendant fails to
return the child at the specified time on
Sunday, August 11, 1996, to the Plaintiff, the
Court will entertain a request for a sanction
of imprisonment.
In a statement of matters complained of on appeal, Defendant
sets forth th~ grounds for his appeal as follows:
4. [T]heAppellant/Defendant does hereby
confirm that he complains of the following
issues:
(a) the denial to allow
the Defendant to
participate by telephone
given a documentable
family emergency,
(b) a contempt penalty
consisting of an
unreasonable limitation
of periods of partial
custody between father
and son,
(c) the denial of the
Defendant's request for a
second hearing to allow
him to provide telephone
records, unavailable at
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NO. 92-0634 CIVIL TERM
the time of the August 9,
1996 hearing that would
corroborate his assertion
that he was at the
custody transfer point at
the court appointed time.
5. The Defendant had advised the court
of his family emergency in an earlier motion
for continuance dated August 8, 1996, said
motion being denied by the court on the same
day it was filed.
6. Within said motion for continuance,
the Defendant advised the court of his
intention to present an additional fact
witness, as well as his intention to present
evidence in the form of telephone records,
both sources of evidence would serve to
authenticate his assertion that he was at the
transfer point at the appropriate time.
Neither the fact witness, nor the telephone
records were available for presentation at the
August 9, 1996 hearing, as specified in the
DefEndant's August 8, 1996 motion.
7. The court by its own admission
indicated on the day of the hearing that it
was unaware of the contents of the motion for
continuance as it pertained to the two
evidentiary questions.
8. The court allowed the Defendant, by
his counsel, to make oral motion for a request
for a second hearing in order to allow the
testimony of the fact witness, Mr. Bachert,
and the telephone records to be considered by
the court. After consulting with opposing
counsel, who advised the court that they
opposed the request, the motion was denied.
9. In previous hearings before this
Honorable Court, telephone testimony had been
utilized by the parties, specifically by the
Plaintiff, in order to provide the court with
all relevant evidence to be considered. The
court apparently changed its standards in
refusing to allow telephone testimony in its
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NO. 92-0634 CIVIL TERM
August 9, 1996 hearing.
10. Defendant believes and therefore
avers that the court in further curtailing his
periods of partial custody as part of its
adjudication of contempt, has in its zeal to
punish the Defendant, lost sight of the
primary goal in any custody proceeding, that
is to craft a custody order that will be in
the best interest of the child.9
This opinion in support of the order dated August 9, 1996, is
written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS; PROCEDURAL HISTORY
The Plaintiff is Margaret M. Reader (formerly Agruso),
residing at 114 West 8th Avenue, Altoona, Blair County,
Pennsylvania.~° The Defendant is Joseph J. Bechara, residing at 916
Center Drive, 'Franklin Square, New York.~
The subject of this custody proceeding is Matthew J. Bechara,
born December 20, 1989. He is the son of the parties, who were
never married to each other; since the dissolution of their
relationship, Plaintiff has married Richard E. Reader~2 and
Defendant has acquired a girlfriend.TM
9 A Statement of Matters Complained of on Appea~ Pursuant to
Pa. R.A.P. 1925(b), filed September 26, 1996.
N.T. 11, Hearing, August 9, 1996.
N.T. 44, Hearing, April 11, 1996.
Id. at 40.
Id. at 49.
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NO. 92-0634 CIVIL TERM
In 1992, following a hearing, this court entered an order
granting primary physical custody of the child to Plaintiff mother,
partial physical custody to Defendant father on alternate weeks
from Thursday until Sunday and for two weeks in August, and
limiting direct contacts between the parties to occasions involving
an emergency.TM
By agreement of the parties, this order was later amended to
provide that Defendant's periods of partial custody would be for
one week in January, February, April, May, September, October,
November and December; two weeks in March, June, July and August;
and over Christmas and New Year's Day on an alternating basis.~s
In 1995, Plaintiff filed a petition to modify the order and
for contempt.~ The order was modified by agreement of the parties
to provide generally for primary physical custody of the child by
Plaintiff mother during the school year; and a hearing was
scheduled before the court to resolve partial custody rights of
Defendant during the school year and to establish a summer custody
schedule.~7 Before the scheduled hearing, Defendant filed a motion
Order of Court, June 3, 1992.
Order of Court, August 14, 1992.
Plaintiff's Petition for Modification/Contempt of Custody,
filed May 18, 1995.
~7 Order of Court, July 20, 1995.
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NO. 92-0634 CIVIL TERM
for a continuance and a petition for contempt,~8 and Plaintiff filed
(at No. 95-4103 Civil Term) a petition under the Protection from
Abuse Act for a protective order and custody.~9
Defendant's request for a continuance of the custody
proceeding was denied.2° A hearing on the other matters, including
custody, was held on September 7, 1995. At the conclusion of the
hearing, orders were issued denying Defendant's petition for
contempt, denying Plaintiff's petition for a protective order and
custody under the Protection from Abuse Act, granting Plaintiff's
petition for contempt against Defendant2~ and modifying the custody
order. The revised custody order, which was not appealed, provided
as follows:
AND NOW, this 7th day of September, 1995,
upon consideration of the Plaintiff's Petition
for Modification of Custody and following a
hearing, it is ordered and directed as
follows:
1. The parties shall share legal custody
of their minor child, Matthew J. Bechara, born
December 20, 1989.
~8 Defendant's Motion for Continuance, filed August 25, 1995;
Defendant's Petition for Contempt of Court, filed September 6,
1995.
~9 Plaintiff's Petition for Protection From Abuse Order and
Custody, filed August 1, 1995.
Order of Court, August 29, 1995.
2~ The contempt related to phone calls made to Plaintiff in
violation of the order. The court imposed a sanction of $50.
Order of Court, September 7, 1995.
NO. 92-0634 CIVIL TERM
2. During the school year, the child
shall be in the primary physical custody of
the mother, and the father shall have the
following periods of temporary custody:
(a) One weekend per month during
the school year to be exercised by the father
giving the mother forty (40) days advance
notice of the weekend he will have the child;
and
(b) The period from noon on
December 26th through noon December 30, each
year; [and]
(c) The child's entire vacation
from school in the spring of each year (in the
event the child has two separate vacations
from school, the father shall be entitled to
have the child for the longer of the two but
not both).
3. From noon on the second Saturday
following the child's dismissal from school
each summer until noon on the second Friday
before school resumes in fall. The Child
shall be in the . physical custody of his
father at his homY'in New York. Mother shall
have seven (7) consecutive days of custody of
the child, to be exercised on dates selected
by the mother [as] to which she will give the
father written notice no later than the 15th
day of April each year.
4. The parties will share transportation
for all custodial exchanges equally by
selecting a mid-point between their homes for
purposes of exchange. Unless the parties
agree otherwise, that midpoint will be at the
border between Pennsylvania and New Jersey on
Interstate 78, and will be at 8:00 p.m. on
Friday evening at the beginning of the
father's weekends, and 7:00 p.m. on Sunday at
the end of those weekends.
5. The party having custody or partial
custody shall provide a telephone number where
he or she can be promptly reached directly or
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NO. 92-0634 CIVIL TERM
indirectly in the event of a medical
emergency. No communication shall be made by
either party directly or indirectly with the
other, with [a] member of the other's family,
or with the other's employer or co-workers
except in the event of a medical emergency or
through legal counsel.22
About two months later, Defendant filed a Petition for
Reconsideration. A representative paragraph of the petition read
as follows:
10. The Petitioner requests the court to
order the Respondent to reimburse the
Petitioner for the cost that he incurs each
trip in tolls. It was this Honorable Court's
Order of September 7, 1995 that established
the parties equally sharing the transportation
responsibilities given the great distance that
exists between the parties. However, due to
the existence of several toll bridges and
roads at his end of the transportation
arrangements, the Petitioner regularly must
spend in excess of $12.00 per trip on tolls
while the Respondent spends $.50 cents for a
single toll.23
A hearing was scheduled on this petition.24 However, in the
interim both counsel requested a conference in chambers on an
emergency basis, and the following order resulted from the
conference:
AND NOW, this 22nd day of November, 1995,
following a conference in chambers with
counsel for the Plaintiff, Gregory J. Katshir,
1995.
Order of Court, September 7, 1995.
Defendant's Petition for Reconsideration, filed October 31,
Order of Court, November 3, 1995.
NO. 92-0634 CIVIL TERM
Esquire, and counsel for the Defendant, James
J. Kayer, Esquire, and both counsel having
requested that certain issues be resolved by
the Court on an emergency basis, it is ordered
and directed as follows:
1. Telephone access to the child shall
be permitted ~y the Plaintiff, Margaret Agruso
Reader, for the Defendant, Joseph Bechara, on
Wednesdays at 8:00 p.m., at which time the
father shall call the child and the child
shall be permitted to answer the phone without
the mother's intervening.
2. Pursuant to an agreement of the
parties through counsel, when a weekend chosen
by the father for his partial custody shall be
a three-day weekend (i.e., having a school
holiday falling on a Friday or Monday), the
father's visitation shall extend to that
vacation day.
3. With respect to the father's
Christmas vacation period of temporary custody
with the child in this year (1995), the
father's weekend custody period for that month
shall occur either at the end of the Christmas
vacation period by the taking of two
additional days or at another time during the
month in December, at the father's option, but
not the weekend commencing December 22.
4. Because of the impending birth of the
mother's child, the weekend commencing January
12, 1995, shall not be available for the
father's partial custody, and he shall select
another weekend for that period .... 2s
This order was not appealed.
Order of Court, November 22, 1995.
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NO. 92-0634 CIVIL TERM
Still prior to the hearing scheduled on Defendant's Petition
for Reconsideration, Defendant filed an "Emergency Petition for
Special Relief Pursuant to Pa. R.C.P. 1915.13." This petition
requested that Defendant be afforded custody of the child for the
weekend of December 15, 1995. A conference with counsel in
chambers resulted in an order expanding instead the Defendant's
custodial period during the child's Christmas vacation.26 This
order was not appealed.
Four additional petitions were then filed. They were
scheduled to be heard at the same time as Defendant's Petition for
Reconsideration. These were Defendant's Petition for Contempt of
Court, filed December 29, 1995; Plaintiff's Petition for Contempt,
filed March 22, 1996; Defendant's Petition for Special Relief,
filed April 10, 1996; and Defendant's Supplemental Petition for
Contempt, filed April 10, 1996.
Order of Court, December 14, 1995.
11
NO. 92-0634 CIVIL TERM
A hearing was held on the five petitions on April 11, 1996.
Among numerous issues at this hearing27 was whether Defendant should
be held in contempt of court for tardiness on his part designed to
frustrate the transfer of custody. In spite of rather strong
third-party testimony adverse to Defendant,28 including testimony
that he was habitually late for custody exchanges,~9 the court gave
Defendant the benefit of the doubt and declined to adjudicate him
27 A sense of the nature of hearings in this case may be
obtained from the following excerpt taken from Defendant's direct
examination, on the issue of Defendant's demand that the court
order a private telephone line installed for the six-year-old at
the mother's home:
Q What solution would you request the
judge make with regard to telephone contact?
A Since the parents seem to have
difficulty, the son shouldn't pay. My son
should not pay for adult problems. My son
should have liberal communication with me, not
at the expense of interfering with other
families, but he should be able to speak to
me. Two times a week is not asking a lot,
Margaret, it really isn't. And I don't see if
that can't be achieved, then a separate line
for him, I'll figure out how we figure out the
bill, and you won't be bothered if it's such a
bother for me to speak to Matthew.
THE PLAINTIFF: You abuse that right.
THE COURT: Wait. I don't want the
parties talking to each other during the
testimony ....
N.T. 52, Hearing, April 11, 1996.
28 N.T. 3-16, Hearing, April 11, 1996.
29 N.T. 10, Hearing, April 11, 1996.
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NO. 92-0634 CIVIL TERM
in contempt.
The order entered following the hearing was as follows:
AND NOW, this llth day of April, 1996,
upon consideration of the Petition for
Contempt filed on behalf of Plaintiff,
Margaret Agruso Reader, the Petition for
Contempt of Court filed on behalf of
Defendant, Joseph J. Bechara, the Petition for
Special Relief filed on behalf of Defendant,
Joseph J. Bechara, the Supplemental Petition
for Contempt filed on behalf of Defendant,
Joseph J. Bechara, and the Petition for
Reconsideration filed on behalf of Defendant,
Joseph J. Bechara, and following a hearing, it
is ORDERED and DIRECTED as follows:
1. The custody order previously entered
in this case as represented by the Orders of
Court dated September 7, 1995, and November
22, 1995, is amended to provided [sic] as
follows:
Wednesday a. With respect to the weekly
evening telephone calls from
Defendant to the parties' child at the
Plaintiff's residence, the said calls shall be
made between 8:00 p.m. and 8:30 p.m. on
Wednesday evening and no other time; Plaintiff
shall insure that the telephone line is open
during that half hour for receipt of the
calls; Plaintiff shall not listen in to the
conversation between Defendant and the
parties' child; and Plaintiff shall not react
to the child's side of the conversation which
she may overhear.
b. Neither party shall call the
other party's residence collect at any time.
2. Plaintiff shall reimburse the
Defendant in the amount of $192.50 for
airplane fare, representing a portion of the
sum which he expended in reliance upon
misinformation conveyed to him by Plaintiff.
3. Defendant shall receive an additional
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NO. 92-0634 CIVIL TERM
two days of partial custody with respect to
the parties' child during the forthcoming
summer, with one day to be selected by the
Plaintiff and one day to be selected by the
Defendant.
4. In all other respects, the relief
requested by the parties in the various
petitions is denied.3°
Defendant appealed this order to the Superior Court on May 7,
1996.3~ This court, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), thereafter filed an opinion in support of its
order;32 as noted previously, this appeal remains pending in the
Superior Court.
On May 20,
special relief.
special relief.
1996, Plaintiff filed an emergency petition for
On May 21, 1996, Defendant filed a petition for
On May 23, 1996, the court held a conference in
chambers with counsel and the issues raised in the petitions were
resolved without a hearing.TM
On July 15, 1996, Plaintiff filed the Petition for Emergency
Special Relief/Contempt of Custody [sic] which resulted in the
order that is the subject of Defendant's most recent appeal and of
this opinion. The petition alleged that Defendant did not appear
30 Order of Court, April 11, 1996, as amended, Order of Court,
April 16, 1996.
Notice of Appeal, filed May 7, 1996.
This opinion was filed May 30, 1996.
See Order of Court, May 23, 1996.
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NO. 92-0634 CIVIL TERM
as scheduled at the custody exchange point on July 14, 1996; that
Plaintiff had not seen her child since June 8, 1996; and that
Defendant was keeping the child from her in New York State. On
July 17, 1996, Defendant filed a response and counter-petition.34
In this document, Defendant admitted that he had not appeared on
time for the exchange.35
A hearing on Plaintiff's petition was scheduled for August 2,
1996.36 On July 19, 1996, it was continued by agreement of counsel
to Friday, August 9, 1996, at 10:30 a.m.~?
About two-and-a-half business hours before the hearing was to
commence, Defendant filed a motion for a continuance.38 The bases
for the motion were (a) that Defendant's father had had an
operation the.previous week; (b) that Defendant wanted to obtain
telephone records to verify that he had made calls to try to locate
the mother when he did arrive at the transfer point; and (c) that
Defendant wanted to call a witness who was employed at the transfer
~4 A hearing on Defendant's counter-petition was deferred,
pending a request by Defendant's counsel that one be scheduled.
N.T. 4-6, Hearing, August 9, 1996.
~s Response to Petition for Emergency Special Relief/Contempt
of Court and Counterpetition for Relief, paragraph 16 (filed July
17, 1996).
Order of Court, July 18, 1996.
Order of Court, July 19, 1996.
~8 The motion was filed at 3:34 p.m., August 8, 1996. In the
alternative, Defendant asked for an additional hearing date.
15
NO. 92-0634 CIVIL TERM
point to verify that Defendant had eventually arrived -- said
witness being "out of state on August 9, 1996, and unavailable to
be reached by telephone."39 The motion did not indicate that
subpoenas had been utilized for production of the records or
attendance of the witness, and no explanation was offered for its
timing. Plaintiff's counsel declined to agree to the requested
continuance.
The court entered an order denying the motion for a
continuance.4° The hearing was held as scheduled. Defendant did
not appear, and he did not return the child for the hearing.
At the commencement of the hearing on August 9, 1996,
Defendant's counsel orally moved for an additional hearing date,
stating inter.alia that "within the next seven to ten days" he
could obtain telephone records indicating that Defendant made long-
distance telephone calls from the transfer site after he arrived
and that the witness, who would say that Defendant eventually
arrived and waited at the site with the child, could be subpoenaed
to appear at a later date.4~ The court denied Defendant's motion
for an additional hearing date, as well as an oral motion made on
behalf of Plaintiff that Defendant be held in contempt for failing
39 Defendant's Motion for Continuance, paragraph 8, filed
August 8, 1996.
Order of Court, August 8, 1996.
N.T. 6-10, Hearing, August 9, 1996.
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NO. 92-0634 CIVIL TERM
to appear at the hearing.42
The evidence at the hearing showed that Plaintiff had driven
five hours from her home in Altoona, Pennsylvania, with her six-
month-old baby, who was ill, to the transfer point43 in Allentown,
Pennsylvania, on July 14, 1996; that she arrived at 11:00 a.m. for
'the 12:00 noon transfer; that she waited an hour until noon and
then an additional period of seventeen minutes, and thereafter
drove back to Altoona without having received Matthew; and that
since June 8, 1996, Defendant had prohibited her from having even
telephone contact with their son.44 Defendant presented no evidence
at the hearing.
Following the hearing, the court entered the order quoted at
the beginning of this opinion, from which Defendant has appealed.4s
DISCUSSION
With respect to Defendant's contention on appeal that the
Court erred in "the denial to allow the Defendant to participate by
telephone given a documentable family emergency," with "the court
[having] apparently changed its standards in refusing to allow
telephone testimony in its August 9, 1996 hearing," several
N.T. 9-10, Hearing, August 9, 1996.
A "Welcome Center." N.T. 14, Hearing, August 9, 1996.
N.T. 11-38.
4s Yet another petition has now been filed in this case and
remains pending in this court. Plaintiff's Petition for
Modification, filed August 9, 1996.
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NO. 92-0634 CIVIL TERM
observations may be made. First, no such request appears in the
record, and the court does not recollect such a request.46 Second,
the alleged family emergency was not "documented." Third, the
court's practice in the past has been to allow telephone testimony
in cases where counsel have agreed to the procedure, and not to
allow it where they have not; in this case, there is no suggestion
that Plaintiff's counsel agreed to Defendant's testimony being
received by telephone.
Finally, as a general rule "all matters which relate to the
orderly conduct of a trial and are not regulated by the
Constitution, a statute or a court rule, are within the discretion
of the court." 38 P.L.E. Trial §21, at 29 (1961). "The trial
court enjoys a broad discretion to control the course of the
proceeding." Posel v. Redevelopment Auth., 72 Pa. Commw. 115, 122,
456 A.2d 243, 247 (1983).
With respect to Defendant's contention on appeal that the
court erred in imposing "a contempt penalty consisting of an
unreasonable limitation of periods of partial custody between
father and son," with the court "in its zeal to punish the
Defendant [having] lost sight of the primary goal in any custody
proceeding, that is to craft a custody order that will be in the
46 It was incumbent upon Defendant to make this issue part of
the record in the case if he wished to raise it on appeal. See
West Shore School District v. Homick, 23 Pa. Commw. 615, 617 n.3,
353 A.2d 93, 94 n.3 (1976).
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NO. 92-0634 CIVIL TERM
best interest of the child," the court is unable to agree. It is,
of course, the rule that "the best interest of the child is always
our overriding concern" in a custody proceeding. Green v.
Sneeringer, 431 Pa. Super. 66, 70, 635 A.2d 1074, 1076 (1993).
In this case, Defendant had previously testified falsely and
been adjudicated in contempt of court. His personal animosity
toward the child's mother has, in the court's view, caused him to
undertake to frustrate the Plaintiff's rights, without regard to
the effect this would have upon the parties' six-year-old child.
After giving Defendant the benefit of the doubt in the most recent
contempt hearing, the Court was not willing to sanction such
conduct further and fashioned an order which it felt would reduce
the stress upon the mother and child occasioned by Defendant's
misconduct. Cf. Williams v. Thornton, 395 Pa. Super. 276, 577 A.2d
215 (1990). In this sense, the court regarded its order as being
in the best interest of the child. See Guadagnino v. Montie, 435
Pa. Super. 603, 646 A.2d 1257 (1994).
With respect to Defendant's contention on appeal that the
court erred in "the denial of the Defendant's request for a second
hearing to allow him to provide telephone records, unavailable at
the time of the ~ugust 9, 1996 hearing that would corroborate his
assertion that he was at the custody transfer point at the court
appointed time," several observations may be made. First,
Defendant conceded in his response to Plaintiff's petition that he
19
NO. 92-0634 CIVIL TERM
was not at the transfer point on time, and his motion for the
scheduling of another hearing date was not premised upon the
contention that he was; it was premised upon the contention that he
did arrive eventually. Second, evidence that he had arrived late
at the transfer point and made telephone calls would not have led
the court to a different conclusion as to the motivation for his
condUct.
Third, the grant or denial of a request for a continuance is
a matter within the sound discretion of the trial court. Kerns v.
Methodist Hospital, 393 Pa. Super. 533, 574 A.2d 1068 (1990). In
this case, the circumstances of (a) the late filing of the motion,
(b) the Defendant's failure to utilize the subpoena power for the
hearing as scheduled and (c) the relative insignificance of the
evidence to be adduced at a later hearing led the court to conclude
that the motion for the scheduling of another hearing date should
be denied.
Gregory J. Katshir, Esq.
900 Market Street
Lemoyne, PA 17043
Attorney for Plaintiff
James J. Kayer, Esq.
4 Liberty Avenue
Carlisle, PA 17013
Attorney for Defendant
: rc
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