Fatemi v. Fatemi

• Decision Date: 12 February 1988
• Citation: 537 A.2d 840,371 Pa.Super. 101
• Parties: Jalal FATEMI, Appellant, v. Linda L. Brodbeck FATEMI now by Change of Name Linda L. Brodbeck.
• Court: Pennsylvania Superior Court

Page 840

537 A.2d 840

371 Pa.Super. 101

Jalal FATEMI, Appellant, v. Linda L. Brodbeck FATEMI now by Change of Name Linda L. Brodbeck.

Superior Court of Pennsylvania.

Argued Sept. 21, 1987.

Filed Feb. 12, 1988.

Thomas S. Cometa, Wilkes-Barre, for appellant.

Anthony J. Martino, Bangor, for appellee.

Before CIRILLO, President Judge, and TAMILIA and BECK, JJ.

CIRILLO, President Judge:

This is an appeal from various orders entered in the Court of Common Pleas, Luzerne County following hearings on an emergency contempt petition. We affirm the court's order, as modified.

Appellant, Dr. Jalal Fatemi, is the natural father of two young boys, who are the subject of the instant custody dispute. Appellee, Linda Brodbeck, formerly Mrs. Fatemi, is the natural mother of the children.

Pursuant to an order dated June 24, 1986, Linda Brodbeck was granted partial custody of the children, consisting of every other weekend, five weeks during the summer, and various holidays. The order contained various other provisions, including the following: "As security to insure compliance with this Order, the deeds presently being held by this Court, and the lis pendens filed against such real estate [appellant's], shall continue in full force and effect."

On one weekend when the children were to be with their mother, appellee was unable to determine their whereabouts. Appellee subsequently filed a petition to hold appellant in contempt. A rule to show cause was issued on September 5, 1986. The rule ordered appellant to show cause why he should not be held in contempt, and why the children should not be removed from his custody and placed in the custody of their natural mother. Appellant was ordered to appear for the hearing set for September 8, 1986. Service of the petition and rule was made upon counsel of record. Dr. Fatemi did not appear for the September 8 hearing, but was represented by counsel. At the hearing, Dr. Fatemi's counsel pointed out that it was his understanding that the lis pendens was against Dr. Fatemi's bare tract of land, and not against his house. Counsel also claimed that appellant had not been properly served pursuant to the applicable rules of court. The court subsequently granted appellee's request that the court issue a lis pendens "against the home as security for Dr. Fatemi under the court rules." The court then instructed counsel to take the appropriate steps to record this fact. The court scheduled another hearing, and ordered Dr. Fatemi to appear. Counsel informed the court that appellant's last known address was in Birmingham, Alabama.

The second hearing was held on September 19, 1986. Dr. Fatemi again did not appear. Counsel informed the court that Dr. Fatemi had fled the jurisdiction for his native country, Iran, and had taken the children with him. Counsel also informed the court that he had verbally advised Dr. Fatemi on two occasions of the proceedings to be held on September 19. Thereafter, appellant's counsel again objected to the notice procedure. Despite these objections, the court proceeded to hear the merits of the case. At the conclusion of the hearing the court issued several orders, from which appellant takes this appeal.

Appellant raises the following five issues on appeal:

(1) Did the hearing judge abuse his discretion or commit an error of law when he issued a number of court orders against appellant who had not been served as required by Pa.R.C.P. 1915.12(a), (b), (c), and (d);

(2) Did the hearing judge abuse his discretion or commit an error of law when he held appellant in criminal contempt when appellant, at no time, appeared personally in or about the court;

(3) Did the hearing judge abuse his discretion or commit an error of law when he fined appellant the sum of $25,000, when appellant, at no time, was served in conformity with the applicable rules of procedure;

(4) Did the hearing judge abuse his discretion or commit an error of law when he ordered that a lis pendens be placed against all of appellant's real estate which included his home which he had listed with a Realtor; and,

(5) Did the hearing judge abuse his discretion or commit an error of law when he changed court ordered legal custody from appellant to appellee, without conducting a hearing with appellant present to determine whether or not the change in custody of the children would be in their best interests and permanent welfare.

We observe at the outset that this court could properly quash this appeal. We have previously held that where a parent has violated a custody order and the contempt is found to be flagrant, appeal may be denied. In Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 188 A.2d 475 (1962), this court quashed an appeal where the mother violated the custody order, was adjudged to be in contempt of court, and then appealed. We stated there:

The question raised by this motion to quash is of great importance. There are a rash of modern instances where court orders are disobeyed with impunity and respect for the law and the courts thereby weakened. It seems, therefore, that it is the duty of the appellate courts to see to it that every assistance is extended to the courts of the Commonwealth so that orders are meticulously carried out as otherwise the dignity of the judiciary, the majesty of the law and its enforcement are clearly undermined.

Id. at 106, 188 A.2d at 476; see also National Union of Marine Cooks v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954) (denial to one who has disobeyed a trial court's order of his statutory right to appeal violates neither the Fourteenth Amendment's guarantee of equal protection of the laws nor its guarantee of due process of law).

We acknowledge the familiar tone of the facts this case. For this reason, and for the edification of the bench and bar, we address the merits of this case.

I

With respect to Dr. Fatemi's first argument, we point out that, contrary to his contention, the notice of the order to appear does comply with the form set forth in Pa.R.C.P. 1915.12(a). In addition, appellee's petition does allege facts, pursuant to Pa.R.C.P. 1915.12(b), which constitute willful failure to comply with the custody order. Appellant argues that since the custody order mentions nothing about obtaining the court's permission to change his (and the children's) residence, he is not in contempt, and therefore appellee has not complied with Rule 1915.12(b). This argument, however, ignores the language and purpose of the custody order.

The order provides that the mother has partial custody according to a specific schedule. In addition, the order states: "Neither party ... shall engage in any conduct which would serve to undermine the relationship of the children with either parent." Appellant's decision to retreat to Iran has not only violated the custody schedule, but has blatantly interfered with what the order attempted to preserve--the children's relationships with each parent. Appellant's actions have flagrantly undermined the mother/children relationship.

Dr. Fatemi also claims appellee failed to comply with Pa.R.C.P. 1915.12(c). Rule 1915.12(c) provides:

The petition shall be served upon the respondent by personal service or regular mail. ... If the respondent fails to appear [at the hearing], the court shall continue the hearing and may order personal service of the petition and notice of a new hearing date by the sheriff or may issue a bench warrant for production of the respondent in court and not for imprisonment.

Appellant's counsel objected several times to the court's decision to proceed with the hearing despite the language in Rule 1915.12(c) which provides that the hearing be continued if respondent fails to appear. At the conclusion of the hearing, the court ordered:

There will be an additional hearing on the motion and the rule, and Dr. Fatemi is ordered to appear in Courtroom No. 4, Luzerne County Courthouse, at Friday, September 19, 1986, at 10:00 a.m., ... to receive further evidence on the emergency petition of Linda L. Brodbeck Fatemi, ... and the Rule to Show Cause issued on said petition [which states] as follows: Why he, Dr. Fatemi, should not be held in contempt of the Court Order of June 24th, 1986; further Rule to Show Cause why an additional weekend of partial custody should not be granted to the Petitioner; and, further a Rule to Show Cause why the children should not be removed from the custody of the father and placed in the custody of their natural mother. [Emphasis added]

When questioned by appellant's counsel as to how service was to be made, the court stated:

Counsel for Dr. Fatemi shall notify him verbally and in writing of the hearing. Counsel for the mother shall notify the Defendant by regular mail and also by certified and/or registered mail, return receipt requested, and also shall deliver to the Sheriff of Luzerne County, who shall deliver to the appropriate sheriff or other proper authority for serving legal documents in Birmingham, Alabama, a notice of the hearing including purposes set forth herein[.]

The court further instructed appellee's counsel to prepare the notice pursuant to Rule 1915.12 so as to avoid further technical problems.

It appears that the technical requirements of Rule 1915.12 were in fact not met inasmuch as the rule and petition were originally served upon appellant's attorneys by regular mail, and not served upon appellant himself. Obviously, this was done because appellant's whereabouts were unknown. In addition, we note that Dr. Fatemi received actual notice of the September 8 hearing on September 5 by way of a telephone conversation with his attorney. During that conversation, Dr. Fatemi told counsel that he would let him know whether he would be at the hearing.

Based on the unusual circumstances of the case, the court allowed the proceeding to continue in an effort to ascertain Dr. Fatemi's whereabouts and to formulate a proper method of service for the...