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COMMONWEALTH EX REL. SCHOFIELD v. SCHOFIELD. APPEAL SCHOFIELD (07/14/53)

July 14, 1953

COMMONWEALTH EX REL. SCHOFIELD
v.
SCHOFIELD. APPEAL OF SCHOFIELD



COUNSEL

Harry J. J. Bellwoar, Jr., and Bellwoar & Rich, Philadelphia, for appellant.

David Cohen, Harry R. Back and Back & Levy, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.

Author: Wright

[ 173 Pa. Super. Page 634]

WRIGHT, Judge.

This case involves a habeas corpus action instituted by William Schofield, the relator, of Miami Beach, Dade County, Florida, to obtain custody of two of his children, namely, William A. Schofield, Jr., and Dorothy Schofield. The court below dismissed the petition and ordered relator to pay the sum of $40 per week for the support of all four of his children. Relator has appealed.

William Schofield and Dorothy Schofield were married in September 1946. Prior to the marriage the defendant bore the relator two children, Dorothy Schofield and William A. Schofield, Jr., now aged 10 and 8 years, respectively. After the marriage two more children were born to the parties, Robert Schofield and Richard Schofield, now aged 5 and 3 years. During the time they lived together, the relator and his wife were residents of Philadelphia, living in a rented house

[ 173 Pa. Super. Page 635]

    at 3246 N. 15th Street. The wife testified that her husband was physically abusive to her and the children and that 'as a result of his drinking habits * * * he has been in a number of sanatoriums'. On March 6, 1951, the wife finally left the common habitation. She did not take the children immediately 'because he would know I was leaving him, and I didn't know what he might do to me'. Thereafter she made prompt efforts to obtain their custody. The two younger children were surrendered to her voluntarily. As to the two older children she testified, 'he understood I wanted them, and he said he would turn them over to me at the end of the school year'.

Subsequently, defendant applied to the Municipal Court of Philadelphia County for support for the two younger children who were with her. At that time she did not know the relator's whereabouts, but later discovered that he had gone to Florida, taking with him the two older children. In September 1951, defendant received a notice advising her that the relator was applying for a divorce in Florida. Meanwhile a bench warrant had been issued, a detective agency employed to locate relator, and extradition attempted at considerable expense, but the State of Florida refused to honor the extradition warrant.

The defendant obtained counsel in Miami, Florida, a de bene esse appearance was entered on her behalf and the divorce proceeding attacked on the grounds of want of jurisdiction, but that question was ruled in relator's favor. On December 17, 1951, the Circuit Court of Dade County, Florida entered a decree of absolute divorce, the said decree further granting to the husband 'entire and permanent care, custody and control of the two (2) children of the parties now in his custody, to wit: William A. Schofield, Jr., aged 6 years; and Dorothy Schofield, Jr., aged 8 years, as he is a fit

[ 173 Pa. Super. Page 636]

    and proper person to have such custody'. The Decree also directed that he 'pay to the Defendant, Dorothy Schofield, the sum of $15 per week for the support and maintenance of the two (2) minor children in her custody, to wit: Robert Schofield, aged 3 years; and Richard Schofield, aged 1 year'. On February 20, 1952, the defendant went to Miami Beach, Florida, and picked up the two older children in their school classrooms and brought them to Philadelphia.

At the time of hearing on May 14, 1952, relator was not present in person, but was represented by counsel. His evidence consisted solely of an exemplified copy of the divorce decree. The defendant testified in her own behalf, and testimony was also given by her mother and step-father. The two older children were privately examined by the hearing judge.

As set forth in his statement of questions involved, the appellant relator contends (1) that the lower court erred in refusing to restore the custody of the two older children to the father in accordance with the decree of the Circuit Court of Dade County, Florida; and (2) that the lower court erred in imposing a support order upon the father for the four children when the right to custody of the two older children is in him by virtue of the Florida decree, and for the further reason that there was no evidence in regard to the father's earnings upon which the lower court could base an order for support. We can find no merit in either contention.

Section 147 of the Restatement of Conflict of Laws provides: 'Except as stated in section 148, when the custody of a child has been awarded by the proper court to either parent, the decree will be enforced in other states'. However, this is not a fast and unyielding rule, for in Comment (a) to this section it is stated: 'It (the decree of custody made by a competent court in another state) is conclusive of the status of the child

[ 173 Pa. Super. Page 637]

    at the time the decree was rendered and the merits of such an award cannot be re-examined either in the state where rendered or in another state. * * * Therefore, while courts in other states will enforce the custody decree in so far as it determines the status of the child at the time it was issued, they may, if they have ...


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