This is a direct appeal from an order of contempt entered by the Luzerne County Court of Common Pleas on January 18, 1982. The trial court held Romayne B. Ermel, appellant,
The matter of custody and visitation rights concerning Rita Ann originated in 1976. At that time Rita Ann was 4 years old. She is now 11, and during the past seven years countless hearings and other proceedings have been held before four different trial judges. The case has been before our court on two previous occasions, resulting in a decision awarding visitation rights to Rita Ann’s father,
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and a subsequent order affirming an award of joint custody to the child’s divorced parents.
2
Appellant has twice been held in contempt for failing to abide by the court ordered visitation and custody schedule. Appellant was first held in contempt on December 20, 1978, for failing to comply with the November 27, 1978 court ordered visitation ■ schedule. On September 24, 1979, she was remanded to Luzerne County Women’s Detention Center because she failed to purge herself of the contempt. On October 3, 1979, appellant gained her release by posting a $25,000.00 performance bond whereby she guaranteed that she would comply with the court’s orders. . (October 3, 1979 N.T. 31-32) Nevertheless, appellant did not adhere to the court ordered visitation schedule, nor did she comply with the subsequent order of December 18, 1979, awarding joint custody to both parents. Consequently, appellee filed a petition for attachment on
Although appellant’s brief frames two questions, her basic contention on appeal is that the evidence was insufficient to support the trial court’s adjudication of contempt. Upon a thorough review of the exhaustive hearings and other proceedings in this case, we find that appellant has violated the court ordered visitation and custody schedule, and thus we affirm the trial court’s contempt order.
The dominant purpose of civil contempt proceedings is to aid a private litigant by coercing the contemnor into compliance with a court order.
Barrett v. Barrett,
In the instant case, the court, in its order of November 27, 1978, granted the father visitation on the first and third Saturdays of each month and on the second and fourth Sunday of each month. In its order of December 18, 1979, the court awarded the father additional periods of partial custody on certain annually recognized holidays, for two weeks during the summer months, and expanded the Sun
In this case, it is evident that appellant has not only violated the court’s orders by making Rita Ann unavailable on certain scheduled days, but furthermore, she has engaged in a course designed to poison her daughter’s mind against her father. After appellant was first held in contempt and placed in a Detention Center, a hearing was held at which she posted a performance bond and promised not to interfere with appellee’s visitation rights. At the hearing, held on October 3, 1979, the following exchange tran
[Dalessandro, J.] Q. There is one great concern that I have. From looking at the record I infer that the child may have deep dislike or possibly hatred for her father. Hate doesn’t grow in children normally. It is usually taught to them. You have the burden of straightening out the child to the fact that this is her father and that there will be visitation. As far as I’m concerned, you, as the person who has custody of the young child, are primarily responsible for her attitudes and her feelings. You are primarily responsible to correct those attitudes and feelings for the best interest of the child. Have I made it clear?
[Romayne Ermel] A. Yes.
(N.T. 40). At the close of the hearing, Judge Dalessandro included the following directives in his decision:
It will be the obligation of Mrs. Ermel to have the child clothed and prepared when Mr. Ermel calls for the child at her residence. Mrs. Ermel is to escort the child to Mr. Ermel’s car which is going to be parked in front of Mrs. Ermel’s residence. It is expected and understood that there may be some initial problems in the physical transfer of the child. The parents are directed to work toward the goal of having Rita Ann placed in her father’s custody for the visitation with a minimum amount of problems ____
(N.T. 41-42). The subsequent order of December 18, 1979, issued by Judge Dalessandro granted joint custody to both parents placing an affirmative duty on appellant to instruct the child that she may enjoy a normal life in the company of her father and that appellant will not be offended if the child shows affection for her father or if she accepts gifts from him or from his family. Appellant was further ordered to instruct Rita Ann to respect her father and his family.
Mrs. Ermel has not assured Rita Ann that appellee is her father. (November 5, 1981 N.T. 69) She claims that she
Indeed, appellant admits that she failed to comply with the court ordered visitation and custody schedule, but she argues that it was impossible for her to perform because Rita Ann had a negative attitude toward her father and she refused to go with him. Impossibility is only a defense, however, where the inability to perform is not due to the defendant’s own actions.
D.E.R. v. Pennsylvania Power Co.,
It is obvious that Mrs. Ermel has a great deal of influence over her daughter’s ideas and feelings and she is the only one who can undo the damage that has been done. Therefore, her argument that Rita Ann’s refusal to cooperate renders compliance impossible is specious, since appellant alone holds the key to removing that impossibility. It is her affirmative duty to create an atmosphere of love and confidence that will convince Rita Ann that she has nothing to fear from her father who loves her and has proven his devotion by fighting for his right to share in the benefits and burdens of parenthood.
Order affirmed.
Notes
. In
Commonwealth ex rel. Ermel v. Ermel,
. By per curiam order and memorandum opinion in
Commonwealth ex rel. Ermel v. Ermel,
. In
Commonwealth ex rel. Ermel
v.
Ermel,
