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COMMONWEALTH EX REL. GREGORY v. GREGORY. (12/09/58)

December 9, 1958

COMMONWEALTH EX REL. GREGORY, APPELLANT,
v.
GREGORY.



Appeal, No. 317, Oct. T., 1958, from order of Court of Common Pleas of Montgomery County, Sept. T., 1957, No. 171, in case of Commonwealth ex rel. Kendall D. Gregory v. Doris Baker Gregory. Order affirmed.

COUNSEL

Richard W. Hopkins, with him Raymond M. Seidel, and High, Swartz, Childs & Roberts, and White, Williams & Scott, for appellant.

James P. Geoghegan, with him Fox, Differ & Honeyman, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Ervin

[ 188 Pa. Super. Page 352]

OPINION BY ERVIN, J.

This is an appeal from an order of the court below in banc modifying an order of the hearing judge and awarding custody of two minor children to the appellee. Doris Baker Gregory, the appellee, and Kendall D. Gregory, appellant, were married on April 8, 1943. Two children were born to the union: Grier Joseph on May 22, 1944 and Thomas Decatur on October 1, 1946. On March 18, 1953, when the couple were living with their children in Gulfport, Mississippi, the appellee obtained an absolute divorce in which it was provided that she was to have custody of the boys for nine months of the year and the father was to have custody for the remaining three months of the year. On October 1, 1954 the Mississippi court modified the decree by awarding the custody of the children to the father for nine months and to the mother for three months

[ 188 Pa. Super. Page 353]

    of each year. On May 23, 1955 the Mississippi court again modified its decree and awarded custody equally between the parents, giving the mother custody from June 1 to December 1 of each year and custody to the father from December 1 to June 1 of each year "until further order of this Court." (Emphasis added) This decree also provided that the children were to be enrolled by the mother in the Bayon View School in Gulfport, Mississippi. In November 1956 the mother filed a petition in the Mississippi court seeking a further modification of the custody arrangement. In July 1957 the mother brought the boys to Pennsylvania, taking up residence in Springfield Township, Montgomery County, Pennsylvania, and enrolling the children in the schools of that township. On October 1, 1957 the mother filed a petition in the Montgomery County court seeking custody of the boys for nine months of the year in order that the boys might spend a full school year in one school without interruption. On December 13, 1957 the father filed a petition in the Montgomery County court seeking a decree to compel the mother to deliver the children into the custody of the father. Both of these matters came on to be heard before President Judge HAROLD G. KNIGHT who, on December 2, 1957, dismissed the petition of the mother for custody and on January 2, 1958 remanded the custody to the mother and ordered that they were to be delivered to the father on February 1, 1958. The order also provided: "The father to give bond in the sum of $2000. conditioned on his returning the infant relators to their mother on June 1, 1958 in accordance with the decree of the Mississippi court dated November 11, 1957." The Mississippi court on November 11, 1957 had further modified its order and gave custody of the boys to the father from November 11, 1957 to June 1, 1958 and for a period from September 1 to

[ 188 Pa. Super. Page 354]

May 31 in each and every year until further order of the court. The mother was awarded custody from June 1 to August 31 of each year until further order of the court. On January 10, 1958, four days after the expiration of President Judge KNIGHT'S term of office, the mother filed exceptions to both decrees theretofore entered by President Judge KNIGHT, which exceptions were subsequently heard before the court in banc of Montgomery County, of which President Judge KNIGHT was no longer a member. On April 9, 1958, in an opinion by Judge DAVID E. GROSHENS for the court in banc, the custody of the two boys was awarded to the mother from the date of the decree until June 20, 1958 and for a period beginning September 1, 1958 and continuing through June 20, 1959 and for a similar period in each and every year thereafter except for the Christmas holidays, until further order of the court. The court also awarded custody of the children to the father for a period from June 20, 1958 to August 31, 1958 and for a similar period in each and every year thereafter until further order of the court. The father was also given custody from December 23, 1958 to December 31, 1958 inclusive and for a similar period in each and every year thereafter. The father appealed.

The appellant contends that it was error for the court in banc to fail to give full faith and credit to the decree of the Mississippi court, where the hearing judge found that there was no change in circumstances since the entry of its prior decree. Our court has recently considered this question in Com. ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 641, 98 A.2d 437, where we quoted with approval the language of our Supreme Court, as follows: "'In our ...


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