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COMMONWEALTH PENNSYLVANIA EX REL. BRIAN M. LOGAN v. MARILYN K. TOOMEY (06/28/76)

decided: June 28, 1976.

COMMONWEALTH OF PENNSYLVANIA EX REL. BRIAN M. LOGAN
v.
MARILYN K. TOOMEY, APPELLANT



COUNSEL

A. A. Bluestone, Pittsburgh, for appellant.

John L. Bailey, Pittsburgh, for appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, Cercone, Price and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 241 Pa. Super. Page 82]

Appeal is taken to our Court from an Order wherein appellee, following hearing, was granted visitation rights in respect to his minor child (who was in the custody of

[ 241 Pa. Super. Page 83]

    appellant, the child's mother) by an order dated October 8, 1975. In pertinent part, the Order is as follows:

Appellee had initiated the proceeding by filing in the lower court a "complaint for partial custody." Added to the record, and referred to by both parties at the hearing, were 1). a divorce decree of March 5, 1973, granted by the Court of Common Pleas of Summit County, Ohio, wherein was incorporated 2). a separation agreement dated December 15, 1972, which agreement contained the provisions that appellant herein was to have custody and appellee, reasonable visitation rights, and 3). an order of said Ohio Court dated April 16, 1974, which order decreed that "the visiting rights of Defendant [appellee herein] with the minor child of the parties shall be at all reasonable times with the right of the defendant [appellee herein] to take the minor child into his possession while visiting with said minor child, but shall not be allowed to leave the general vicinity of Pittsburgh, Pennsylvania during said visiting time; that the defendant shall give to the plaintiff [appellant herein] a one (1) week notification of the exercise of said visitation rights."

On October 15, 1975, appellant filed in the lower court a "petition for supersedeas," alleging, inter alia, a fear that appellee would not return the child once out of the jurisdiction of Pennsylvania, that the October 8, 1975, order hereinabove referenced was unenforceable, that she had taken an appeal to the Superior Court, and that

[ 241 Pa. Super. Page 84]

    the best interests of the child mandated that he remain with appellant. Following hearing on October 20, 1975, the lower court granted supersedeas upon certain conditions, one of which was that appellee could visit the child at specified times within Allegheny County only, and further ordered plaintiff to post a $1,500.00 compliance bond. Also, on October 15, 1975, appellant filed her appeal to our Court, certiorari issuing forthwith and returnable on April 1, 1976.

Initially we find that the Order of October 20, 1975, is of no effect. Once an appeal is taken and certiorari is served upon the court of first instance, that court is without jurisdiction to proceed further until the appellate court disposes of the matter. Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965) and Weise v. Goldman, 229 Pa. Super. 187, 323 A.2d 31 (1974). Our record shows that the lower court received our certiorari on October 15, 1975. The lower court may act so as to preserve the status quo, which in this case is the Order of October 8, 1975. Appeal of New Brighton Railroad, 105 Pa. 13 (1884). We view the October 20, 1975, order as one which substantially changed the import of the former order. Therefore, the later order was of no effect.

As to the merits of the case, appellant argues that the lower court did not have jurisdiction to entertain appellee's complaint for visitation. Our law is clear "that jurisdiction in custody cases instituted by habeas corpus follows either the domicile of the minor children or the residence of the children, and the domicile of a child is that of the parent having custody." Swigart v. Swigart, 193 Pa. Super. 174, 177, 163 A.2d 716, 718 (1960). Also Commonwealth ex rel. Camp v. Camp, 150 Pa. Super. 649, 29 A.2d 363 (1942). We hold that this rule obtains as well in ...


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