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COMMONWEALTH EX REL. SHOEMAKER v. SHOEMAKER (11/16/67)

decided: November 16, 1967.

COMMONWEALTH EX REL. SHOEMAKER
v.
SHOEMAKER, APPELLANT



Appeals from orders of Court of Common Pleas of Delaware County, No. 368 of 1963, and Court of Quarter Sessions of Delaware County, March T., 1963, No. F-8-145, in case of Commonwealth ex rel. Rolande Shoemaker v. Winslow C. Shoemaker.

COUNSEL

Robert B. Surrick, with him Cramp & D'Iorio, for appellant.

Murray S. Eckell, with him Ronald W. Shipman, and Eckell, Sparks & Monte, for appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Montgomery, J. Ervin, P. J., took no part in the consideration or decision of this case.

Author: Montgomery

[ 211 Pa. Super. Page 189]

The appellant, father of two sons age six and eight, appeals from an order awarding custody of them to their mother, and from a second order refusing to strike arrearages which had accumulated on an order on the appellant for their support.

Two questions are submitted to us. The first is whether the court below had jurisdiction of the support matter at the time the aforesaid order relating to it was made. The second is whether the "tender years Doctrine" was properly recognized in awarding custody to the mother in light of the fact that she was a

[ 211 Pa. Super. Page 190]

French National who planned to remove the children to Spain where the environmental circumstances in which they were to reside would not be as favorable as those of the father in Delaware County, Pennsylvania.

Appellant raises the question of jurisdiction in the support matter for the reason that an order for support had been entered in a contested divorce action between the parties in the Kingdom of Morocco subsequent to the time the original support order was made by the Delaware County Court; and secondly, because the Delaware County Court had recognized its lack of jurisdiction at the time a previous petition filed by appellant to vacate the original support order had been denied, which order of refusal was not appealed.

When these matters first came before the lower court the parties permanently resided in Media, Delaware County, Pennsylvania. That court awarded the children to the mother and directed the father to pay $75 per week for the support of the mother and children. Later the mother was granted permission to take the children to France to live there with her family, the father to have custody during the months of July and August; and the order of support was reduced to $55 per week. This order was later amended to permit the mother to take the children to Casablanca, Morocco. However, because the mother refused to honor that part of the order providing for custody to be in the father during the summer months, Judge van Roden of the Delaware Court, on December 18, 1964 entered an order removing custody from the mother and giving it to the father. Apparently this was done without a hearing or notice to the mother. Subsequently, in November, 1966 the father succeeded in having the Supreme Court of Spain honor this order, which court compelled the return of the children to their father who immediately brought them back to

[ 211 Pa. Super. Page 191]

Delaware County, Pennsylvania. In the interval between July 1, 1964 when appellant went to Morocco to secure custody of his children and November, 1966 when he regained custody of them through the Spanish Court, the parties had been divorced in Morocco, as previously stated. The divorce action was commenced on July 30, 1964 and the final decree is dated July 11, 1966. All during this period the support order made by the Delaware County Court remained in force but unpaid. Appellant's first petition to vacate it was denied July 30, 1965 but on September 8, 1966 it was suspended as of July 7, 1966 on a second petition, with the arrearages remaining. A third petition to ...


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