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COMMONWEALTH EX REL. GRAHAM v. GRAHAM (05/23/51)

May 23, 1951

COMMONWEALTH EX REL. GRAHAM
v.
GRAHAM, APPELLANT



Appeal, No. 95, Jan. T., 1951, from order of Superior Court, No. 46, Oct. T., 1950, reversing order of Court of Common Pleas of Clearfield County, Nov. T., 1949, No. 351, in the case of Commonwealth of Pennsylvania ex rel. Anna May Graham v. David B. Graham and James A. Cowher. Order reversed.

COUNSEL

W. Albert Ramey, for appellants.

Dan P. Arnold, with him D. Edward Chaplin and Chaplin & Arnold, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 367 Pa. Page 554]

OPINION BY MR. JUSTICE CHIDSEY

Anna May Graham, appellee, on November 2, 1949, instituted the instant habeas corpus proceedings in Clearfield County, Pennsylvania, against David Graham, father, and James A. Cowher, paternal great-grandfather, to secure custody of her son, Andrew Graham, age five years. She relied upon a decree of an Ohio court awarding custody of the child to her. The court below, on November 16, 1949, entered an order refusing the prayer of the petition, thereby permitting the child to remain with the father and paternal great-grandfather. The Superior Court reversed the

[ 367 Pa. Page 555]

    lower court. We allowed this appeal by the father and great-grandfather.

David and Anna Graham, after their marriage on June 30, 1944, moved from Pennsylvania to Cleveland, Ohio, where the child, Andrew, was born on December 26, 1944. The parents separated in 1945. Anna was thereafter employed as a practical nurse. Because of that employment and her defective vision, the child was cared for from time to time and largely reared by his great-grandfather, with whom he lived while in Pennsylvania. Divorce proceedings were instituted in Ohio by the mother. A hearing was had on April 5, 1949, and on April 8, 1949, a decree was entered divorcing the parents and providing with respect to the child: "It is further ordered that the Plaintiff be and is hereby awarded the temporary custody of the said minor child but due to the present physical condition of the plaintiff, it is further ordered that the said child continue to be domiciled with the paternal grandfather." (Inadvertently the order read "grandfather" rather than "great-grandfather".) The child had returned to Clearfield County, Pennsylvania, with James A. Cowher, the great-grandfather, on April 1, 1949, four days before the hearing and seven days prior to the decree.*fn1 The Ohio court further ordered that the arrangement as regards domicile should continue for a year and a half, after which time the issue of custody and domicile might be relitigated. This arrangement, as the order indicates, was made because of the physical

[ 367 Pa. Page 556]

    condition of the mother, namely, her defective vision, which, by her own admission, was and remains only ten per centum of normal.

The record with respect to the Pennsylvania proceedings is not clear. It appears, however, but not by the docket entries, that in July, 1949, the mother first instituted habeas corpus proceedings in Clearfield County, Pennsylvania, against David Graham and James A. Cowher to determine custody of the child,*fn2 that the court ordered a continuance, permitting the mother to take the child for two weeks upon posting a bond assuring return of the child to his great-grandfather at the end of that period, and conditioned that he should not be removed from Pennsylvania; and that notwithstanding this condition of the order, Anna Graham took the child to Cleveland, Ohio. She did return in due course and the court leniently cancelled the bond.

The docket entries reveal that a petition for habeas corpus was filed November 2, 1949, and a rule issued pursuant thereto. The court below and the attorneys before this Court have treated the hearing on November 4, 1949, as a second hearing on the original petition. All parties were present at this hearing in November.

[ 367 Pa. Page 557]

Anna Graham offered in evidence a copy of the original decree of divorce and a copy of a subsequent decree of an Ohio court dated October 26, 1949. The latter decree awarded exclusive custody of the child to the mother and ordered the child to be domiciled with the mother's sister and her blind husband in Arizona. The child, the husband, and the great-grandfather were not present at the hearing in Ohio which resulted in the modifying order, although David Graham received a letter from his wife's attorneys advising him of the pendency of the action. David Graham's attorney appeared in the Ohio court and asked for a continuance in order to prepare the case, which request was refused by the court.

Appellants introduced evidence in the instant proceeding with respect to the fitness of each parent and the great-grandfather and the environment presently surrounding the child. The hearing judge concluded that the best interests and welfare of the child would be served by his continuing to live with his father and great-grandfather, and entered an order denying the prayer of the mother's petition. The Superior Court was of opinion, President Judge RHODES dissenting, that (1) full faith and credit must be given to the Ohio decree of October 26, 1949, and (2) irrespective of full faith and credit, the best interests of the child required an award of custody to the mother.

Appellants contend that the full faith and credit clause of Article IV, Section 1 of the Constitution of the United States is inapplicable as regards the orders of the Ohio court for the reason that the child, when the respective hearings were held and decrees were entered, was not subject to the jurisdiction of the foreign court, and that the Superior Court gave undue weight to minor facts, with the result that its order is not conducive to nor does it promote the best interests and welfare of the child.

[ 367 Pa. Page 558]

Consideration of the issues presented and review of the entire record compel the conclusion that the order of the Superior Court be reversed.

Neither the authentication of the original Ohio decree of April 8, 1949, nor of the modifying decree of October 26, 1949, conformed with the laws of Congress with respect to judgments and decrees of another state in that both lacked the required certificate of the hearing judge that the attestation of the clerk of the court was in due form (Act of June 25, 1948, c. 646, 62 Stat. 947, 28 U.S.C.A. 1738). It is not clear, however, that objection by appellants' counsel to admission into evidence of these decrees was based on their irregularity in this respect, and to effect a complete disposition of this case we will consider them as properly in evidence.

If it be assumed that the Ohio court had jurisdiction of the subject matter (status of the child) to enter the order of April 8, 1949, and that full faith and credit must be extended thereto, it must be recognized that the order definitely establishes the domicile and residence of the child in Pennsylvania. The Ohio court not only permitted, but directed that the domicile as well as residence of the child, the controlling factors as to jurisdiction, be in Pennsylvania. While the child is domiciled and resident in Pennsylvania, the Ohio court is without jurisdiction of the person and subject matter. The attempted reservation of jurisdiction by the court and the provision for reconsideration at the end of eighteen months could not, therefore, be enforced by the Ohio court. It surrendered any jurisdiction it may have had, and its later decree of October 26, 1949 was nugatory. To conclude otherwise would permit reservation of jurisdiction and control of the actual custody of the child for any stated time, indeed throughout its minority, regardless of its whereabouts as to residence and domicile. Certainly, such stated retention of jurisdiction cannot have extraterritorial effect

[ 367 Pa. Page 559]

    to preclude courts of a sister state, being possessed of domicile and residence, from exercising jurisdiction.

Jurisdiction of a court in a proceeding involving custody is determined by the domicile or residence of the child. Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524; Dommonwealth ex rel. Sage v.a Sage, 160 Pa. 399, 28 A. 863; Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649 (1942), 29 A.2d 363; In re: Custody of Minor Children of Dunbar A. Rosenthal, 103 Pa. Superior Ct. 27, 157 A. 342; Commonwealth ex rel. v. Eich, 73 Pa. Superior Ct. 268; State ex rel. Larson v. Larson, 190 Minn. 489, 252 N.W. 329 (1934); Restatement, Conflict of Laws, Sections 117, 145, 146. A court which does not have jurisdiction of the child, does not have jurisdiction of the subject matter to determine the right of custody as between the parties. Commonwealth ex rel. v. Daven, supra; Commonwealth ex rel. Camp v. Camp, supra; Gilman v. Morgan, 158 Fla. 605, 29 So. 2d 372, cert. denied, 331 U.S. 796; Dorman v. Friendly, 146 Fla. 732; Lake v. Lake, 63 Wyo. 375, 182 P. 2d 824.

Infants are wards of the court having jurisdiction of their person. They are under its protection, care, and control. In awarding the custody of a child, the court must be guided in its decision by the welfare and best interests of the child. The Commonwealth is vitally concerned with infants within its boundaries and an interested party in all matters affecting them. Commonwealth ex rel. Children's Aid Society v. Gard, 162 Pa. Superior Ct. 415 (1948), affirmed 362 Pa. 85, 66 A.2d 300; Burns v. Shapley, 16 Ala. App. 297, 77 Co. 447; Helton v. Crawley, 41 N.W. 2d 60 (1950) (Iowa); People ex rel. Wagner v. Torrance, 95 Colo. 47, 27 P. 2d 1038; McMillin v. McMillin, 114 Colo. 247, 158 P. 2d 444; 31 C.J., Infants, 988, Section 6; 43 C.J.S; Infants, Section 5, p. 52. The interest of the state is reflected

[ 367 Pa. Page 560]

    in the criterion adopted by our courts, that the controlling consideration is the welfare of the child, including physical, intellectual, moral, and spiritual well-being. Commonwealth ex rel. v. Daven, supra; Commonwealth ex rel. Children's Aid Society v. Gard, supra.

Residence within this Commonwealth is sufficient for exercise of jurisdiction by our courts: Commonwealth ex rel. v. Daven, supra; Commonwealth ex rel. Sage v. Sage, supra; Commonwealth ex rel. Camp v. Camp, supra; Commonwealth ex rel. v. Eich, supra; In re: Custody of Minor Children of Dunbar A. Rosenthal, supra. When the father returned to Pennsylvania on June 11, 1949, more than four months before the Ohio decree of October 26, 1949, and made his home with the great-grandfather and child in this State, whatever may have been the status of the child, it is clear that residence ripened into domicile.

Examination of the instant record with respect to the jurisdiction of the Ohio courts reveals fundamental factors which do not require courts of Pennsylvania to recognize the orders in question as presently binding upon them. The child left the State of Ohio on April 1, 1949, to resume residence in Pennsylvania with his great-grandfather. The divorce proceedings which resulted in the decree purporting to establish the child's domicile in Pennsylvania were heard on April 5, 1949. The minor child was not then within or a resident of the State of Ohio, and any decree of the court could be effective only as regards the parents themselves. Commonwealth ex rel. Camp v. Camp, supra; Commonwealth ex rel. Josephine Lembeck v. Lembeck, 83 Pa. Superior Ct. 305; Gilman v. Morgan, supra; Reynolds v. Stockton, 140 U.S. 254 (1891); ...


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