Com. ex rel. Magaziner v. Magaziner

• Decision Date: 23 April 1969
• Citation: 253 A.2d 263,434 Pa. 1
• Parties: COMMONWEALTH of Pennsylvania ex rel. Edith Braumstein MAGAZINER v. David A. MAGAZINER, Jr., Petitioner.
• Court: Pennsylvania Supreme Court

Page 263

253 A.2d 263

434 Pa. 1

COMMONWEALTH of Pennsylvania ex rel. Edith Braumstein MAGAZINER v. David A. MAGAZINER, Jr., Petitioner.

Supreme Court of Pennsylvania.

April 23, 1969.

Laurence H. Eldredge, Philadelphia, for appellant

Sidney Ginsberg, Philadelphia, for respondent Edith B. Magaziner.

Before BELL, C.J., and JONES, COHEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is the culmination of a series of events in an unfortunate family squabble. David A. Magaziner, Jr. and Edith Braunstein Magaziner were married on April 19, 1950 and are the parents of three minor children. In 1967, the parties separated and in August of that year Mrs. Magaziner commenced a divorce action. In September of 1967, Mrs. Magaziner filed two petitions in the County Court of Philadelphia. One petition was for a writ of habeas corpus, asking the court to award her custody of the children. The other sought support for the three children. The docket entries indicate that custody was awarded to Mrs. Magaziner on September 21, 1967. Support for the children was originally set, on December 14, 1967, at $150.00 per week. Then on January 18, 1968, the County Court, through Judge Bonnelly, issued thefollowing order:

'AND NOW, TO WIT, this 18th day of January, 1968, in consideration of the attached agreement which has been filed by both parties, dated December 21, 1967, both parties being represented by counsel and an addendum dated January 17, 1968, it is ORDERED that in accordance with said agreement and addendum, the husband is to pay the sum of one hundred dollars ($100.00) per week for the three children, said payments to be made through the Clerk of the Court, 1801 Vine Street. Said Order is to commence as of today. Any other Order heretofore entered is hereby vacated. The parties have agreed that the custody of the children be with the Mother, AND IT IS SO ORDERED.

The parties have agreed as to visitation, and IIT IS SO ORDERED in accordance with the terms of the agreement. If, at any time, a violation of visitation order is shown to the Court, the Court shall immediately order a hearing.'

Mrs. Magaziner obtained a final decree of divorce on February 17, 1968 and by deed dated February 15, 1968, title to premises 3024 Midvale Avenue, Philadelphia (the former home of the parties) was vested in Mr. Magaziner.

In May of 1968 a dispute arose concerning various personal items belonging to Mrs. Magaziner and the children, and concerning her right to enter her husband's house to get the items. Although the exact factual matrix of the case is unclear and subject to dispute, certain facts appear of record. On May 2, 1968, Judge Bonnelly informed Mr. Magaziner's counsel, I. Raymond Kremer, by letter and perhaps also by telephone, that Mr. Magaziner had breached the agreement to permit Mrs. Magaziner to take the children's and her belongings from the house. The letter further stated:

'I shall consider it a Contempt of Court if he fails to comply with the agreement.

'Mrs. Magaziner will call at the house on Monday morning May 6th, 10 A.M., for this purpose. If he refuses to comply with the direction of the Court, he will be considered in contempt.'

It is not apparent whether any belongings were given to Mrs. Magaziner on the weekend, but it is clear that none were given to her at 10 A.M. Monday morning since Mr. Magaziner was not at home when she called. Mrs. Magaziner and her counsel, Richard Sprague, then appeared, on Monday, May 6th, before Judge Bonnelly who scheduled a hearing for the next day. At that hearing on May 7th Mr. Magaziner did not appear, his attorney stating that Mr. Magaziner could not be reached. Judge Bonnelly, over objection that Mr. Magaziner was not present, then heard the testimony of Mrs. Magaziner and stated, 'I will consider him in contempt of court. I will give you an opportunity to present him tomorrow morning at 10 o'clock. If he does not appear, I will hold him in contempt of court.'

On Wednesday, May 8th, Mr. Magaziner appeared, along with his counsel and his father. Counsel suggested that on May 16th Mrs. Magaziner could appear at Mr. Magaziner's home to pick up the belongings. This date was then changed to May 17th for the convenience of Mrs. Magaziner. When she arrived on May 17th, Mrs. Magaziner was told that all the items to which she was entitled were in the garage. Mrs. Magaziner insisted that she had a right to enter the house, but she was not permitted to do so.

On the same day, May 17th, Mrs. Magaziner, by her counsel, presented to Judge Bonnelly a petition to cite Mr. Magaziner for contempt. The crux of the petition was that she had been denied the right, allegedly authorized by court order, to enter Mr. Magaziner's house for the purpose of ascertaining and obtaining the items to which she was entitled. Judge Bonnelly then signed an order 'Let Attachment Issue, Returnable Forthwith' for the arrest of Mr. Magaziner. He was arrested, booked, fingerprinted, and placed in a cell until bail was secured.

On June 28, 1968, Mr. Magaziner filed a petition in this Court. Although at times referred to as a petition asking this Court to take original jurisdiction, in essence it sought a writ of special certiorari so that this Court could exercise its King's Bench Powers to correct an allegedly flagrant violation of the petitioner's rights. Such writ was granted on August 5, 1968.

Our review of the record convinces us that petitioner's characterization of the proceedings below has much merit in it. Assuming arguendo that petitioner could be shown to be in contempt of a valid order of the County Court, surely that court did not follow the proper procedure for putting the question in issue. The court issued an order 'Let Attachment Issue, Returnable Forthwith.' As far back as Commonwealth v. Snowden, 1 Brewster 218, 219 (1868), this Court set forth the practice on attachment for civil contempt: 'A rule is generally granted in the first instance on affidavits, upon the return of which the defendant answers on oath, the evidence is heard, and if the court should be of opinion that the fact on which the rule was taken is not sufficiently answered or excused, and that in point of law a contempt has been incurred, an attachment is awarded when the defendant is brought in on this writ to answer interrogatories propounded to him on behalf of the Commonwealth, in whose name the writ always issues, and if he gives such answers as purge him from the criminality, he must be discharged.' In other words, it is a several step process that must take place to hold one in civil contempt--rule to show cause why an attachment should not issue, answer and hearing, rule absolute (arrest), hearing on the contempt citation, adjudication of contempt. The court here improperly elided the first step. In Douglass-Whisler B. Co. v. Simpson, 233 Pa. 517, 82 A. 760 (1912), a writ of attachment was issued by the court below to compel the appellee to comply with a court decree; the court then reconsidered and quashed the writ. This Court observed at page 519, 82 A. at p. 760: 'It was issued upon the petition of the appellant without previous personal notice to the appellee of the decree against him, and without a rule to show cause why it should not issue. The general rule is well settled that a writ of attachment for the summary arrest and imprisonment of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will afford him an opportunity of being heard.' See also Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925).

Yet even if the procedure in the instant case had been letter perfect, Mr. Magaziner would have suffered a gross injustice in being cited for contempt. For it should be beyond question that one can be held in civil contempt only for failure to obey some process or order of court. The petition to cite for contempt recites that at the hearing of May 7, 1968, Judge Bonnelly told Mr. Magaziner's counsel...