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COMMONWEALTH PENNSYLVANIA EX REL. MARY MCKINNEY v. LINDA MCKINNEY AND DONALD MCKINNEY (12/24/77)

decided: December 24, 1977.

COMMONWEALTH OF PENNSYLVANIA EX REL. MARY MCKINNEY
v.
LINDA MCKINNEY AND DONALD MCKINNEY, APPELLANTS



COUNSEL

William C. Gierasch, Jr., York, for appellant.

Daniel W. Shoemaker, York, for appellee.

O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., did not participate in the consideration or decision of this case. Packel, J., filed an opinion in support of per curiam order. Roberts, J., filed a concurring and dissenting opinion in which O'Brien, J., joins. Nix, J., filed a concurring and dissenting opinion. Manderino, J., filed a concurring and dissenting opinion.

Author: Per Curiam

[ 476 Pa. Page 2]

OPINION

Mr. Justice O'Brien, Mr. Justice Roberts, Mr. Justice Pomeroy and Mr. Justice Packel affirm the contempt order against Donald McKinney. Mr. Justice Pomeroy, Mr. Justice Nix, Mr. Justice Manderino and Mr. Justice Packel reverse the contempt order against Linda McKinney.

[ 476 Pa. Page 3]

OPINION IN SUPPORT OF PER CURIAM ORDER

PACKEL, Justice.

A divorce and custody award to a mother in New York, followed by her moving to Florida, culminated in this Pennsylvania proceeding by the Florida mother to obtain physical custody of her son. The service or attempted service of a writ of habeas corpus upon the father at his home in Pennsylvania was described by his wife, the stepmother of the child, as the handing of legal papers to her, which she refused to accept.

Another writ of habeas corpus commanding the stepmother to produce the child in court some twenty-five days later was served upon her as she was picking up the child at elementary school. At the first hearing the stepmother testified that she told her husband about the writs. She also stated that they lived in their Pennsylvania home until the father and child moved out within twenty-four hours after the service of the last writ and that she did not know where in New York her husband and the child were living.

A second hearing was held to show cause why the wife and the husband should not be held in contempt for failing to obey the writs. Notice of the hearing was given to the husband by mail to his New York lawyer. At this hearing the stepmother again testified that her husband had taken the child and that she had no custody or control over the child thereafter. The court entered a final order finding the father and stepmother in contempt of court and concluded:

[ 476 Pa. Page 4]

"We assess a civil penalty designed to compel the delivery of the child in Court at the rate of $100 every 7 days from this date until the child is produced and hearing may be had."

The Superior Court affirmed the order per curiam.

After this Court granted a petition for allowance of appeal the father and stepmother filed a petition to modify, supplement and amend the record, alleging that subsequent to the appeal to the Superior Court the father had sought a change in the New York custody decree. It also alleged that the New York court, after a custody hearing in which the mother and her counsel had appeared, modified the original order so that the father was awarded custody of the child on April 11, 1977. The mother filed an answer to the petition to this Court which did not deny her participation in the New York hearing but denied the effectiveness of that proceeding in this Commonwealth.

The case presents three broad issues: first, the question of jurisdiction in the threefold aspect of the basis for asserting jurisdiction, the effectuation of service and the reasonableness of notice; second, the liability of a spouse for non-compliance with an order to produce a stepchild in the physical custody of her husband; and, third, the effect, if any, of a subsequent contested custody order of an extra-state court upon a pre-existing contempt order of a local court.

I. Custody Jurisdiction Over an Absent Parent

The recognized bases for the judicial assertion of jurisdiction in child custody cases include the physical presence of the child in the state, the domicile of the parties to the controversy, and the domicile of the parent who has physical custody. Conflict of Laws, Restatement 2d, ยง 79, cited with approval in Commonwealth ex rel. Logan v. Toomey, 241 Pa. Super. 80, 359 A.2d 468 (1976). No problem exists in this case as to the basis for jurisdiction because, at the inception of the proceedings, the child was living in ...


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