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ESTATE R. L. L. (12/21/79)


decided: December 21, 1979.


No. 83 March Term, 1978, Appeal from the Decree of the Court of Common Pleas of Washington County, Pennsylvania, Orphans' Court Division, Dated May 2, 1978, pertaining to a Petition for the Guardianship of the Person of R.L.L., a minor


Sanford S. Finder, Washington, for appellant.

John J. Hickton, John J. Dean, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen, Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Roberts, J., files a dissenting opinion in which Eagen, C. J., joins.

Author: Nix

[ 487 Pa. Page 224]


This matter comes to this Court on appeal from an award of guardianship of the person in favor of the paternal grandparents, appellees, by the Washington County Court of Common Pleas, Orphans' Division.

K. L., appellant, and G. L. were divorced by a decree issued from the Cameron County Court in April, 1977. Prior to the divorce, on March 25, 1977, and the consent of appellant, G. L. took his minor daughter, R. L., to her paternal grandparents' home in Washington County, Pennsylvania, in order that she might receive medical attention. On April 4, 1977, appellant petitioned the Cameron County Court of Common Pleas for a writ of habeas corpus awarding her custody of the child. Preliminary objections as to that court's jurisdiction and venue, filed by the father, were dismissed and custody awarded to the appellant. That decision was appealed to the Superior Court and affirmed. Liggitt v. Liggitt, 253 Pa. Super. 126, 384 A.2d 1261 (1978). On July 1, 1977, the grandparents (appellees) with whom the child had continued to live since her placement with them in March of 1977, petitioned the Washington County Court, Orphans' Division, for appointment as guardians of her person.*fn1 On July 8, 1977, appellant filed for a writ of habeas

[ 487 Pa. Page 225]

    corpus in Washington County Court of Common Pleas, Civil Division, and also contested the guardianship proceeding pending in the Orphans' Court of that same county, specifically objecting to its jurisdiction and venue. The objections were dismissed and appellees appointed guardians. The instant direct appeal was filed pursuant to 42 Pa.C.S.A. § 722(3).

Appellant contends that the Washington County Court was without jurisdiction.*fn2 A number of arguments are offered in support of this contention. We will discuss them seriatim. Appellant first suggests that section 712 of the Probate Estates and Fiduciary Code, 20 Pa.C.S.A. § 712, requires the conclusion that the jurisdiction of the subject matter was in Cameron County and not in Washington County.*fn3 The reason offered to support this argument is

[ 487 Pa. Page 226]

    that since the Cameron County Court of Common Pleas first accepted jurisdiction over the habeas corpus petition filed by appellant, it was the purpose of section 712 to prevent any other court from considering a related matter. This contention clearly misperceives the meaning of section 712. Specifically, appellant refers to the following language of the section:

§ 712. Non-mandatory exercise of jurisdiction through orphans' court division.

The jurisdiction of the court of common pleas over the following may be exercised through either its orphans' court division or other appropriate division:

(3) The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans' court division in general) and also matters not enumerated in that section.

20 Pa.C.S.A. § 712(3) (Supp.1978-79).

This section is concerned with the venue allocations between divisions of the same court of common pleas and not as between the courts of common pleas of sister counties.

Appellant next argues that the Superior Court's ruling that Cameron County Court had venue to try the habeas corpus action*fn4 should be conclusive in establishing the impropriety of the Washington County Court in considering the question of guardianship. This argument would be persuasive if the habeas corpus action and the guardianship action had the identical venue requisite and they were mutually exclusive. However, this is not the case.

Venue in child custody matters follows the domicile or the residence of the child. Com. ex rel. Graham v. Graham, 367 Pa. 553,

[ 487 Pa. Page 22780]

A.2d 829 (1951); Com. ex rel. Hickey v. Hickey, 216 Pa. Super. 332, 264 A.2d 420 (1970). Moreover, the county of domicile of the child's custodian who has the power to produce the child within the county, also has venue over the child's custody although the child is physically outside of the county.*fn5 It was on the basis of this latter theory that the Superior Court found venue in Cameron County to hear the habeas corpus matter. Liggitt v. Liggitt, supra.

The action for the appointment of guardians of the person was instituted by appellees in Washington County pursuant to the Probate Estates and Fiduciary Code, supra. Section 5111 of the Code sets residence of the minor within the county as the criteria for determining the proper county to entertain that type of proceeding. 20 Pa.C.S.A. § 5111(a).*fn6 It is not contested that the minor physically resided in Washington County when the action for guardianship was instituted in the court of that county. Thus, venue was in the Washington County court pursuant to the express terms of the act. It is, therefore, apparent that both courts had venue over the matters considered by them.

The real question raised in this appeal is not one of jurisdiction or venue, but rather whether or not the decision of the Cameron County court, having priority in time, should have been controlling. We accept that an action for custody and one for guardianship over the person effect the same interests. See, e. g., In re Lewis, 396 Pa. 328, 152 A.2d 666 (1959). We are thus faced with the question as to whether or not this case represents a situation where a court is ignoring the mandates of a sister court of equal jurisdiction which we do not permit. Cf. Commonwealth v. Demichel, 442 Pa. 553, 277 A.2d 159 (1971); See also, Smith v. Gallagher,

[ 487 Pa. Page 228408]

Pa. 551, 185 A.2d 135 (1962); cf. Commonwealth ex rel. Soloff v. Soloff, 215 Pa. Super. 328, 257 A.2d 314 (1969).

We have developed in this jurisdiction two bodies of case law to prevent this type of conflict between the various courts. The first is the doctrine of res judicata*fn7 with its components merger and bar, and the second is its offshoot, collateral estoppel.*fn8 Both doctrines rest upon the final judgment rule.*fn9

[ 487 Pa. Page 229]

Neither doctrine, however, is applicable here to permanently foist upon the Washington County court the custody award issued by its sister court. That determination was binding only upon parties to that action or ones in privity. Since this guardianship proceeding was initiated by the paternal grandparents who were neither parties to that action or in privity to those who were, entertainment of the action was proper.*fn10

Even if we were to accept the view that the appellees were in privity with their son, the natural father, the same result would be obtained. There was no "final judgment" rendered by the Cameron County court from which to assert the doctrines of res judicata or collateral estoppel. The court in Irizarry Appeal, 195 Pa. Super. 104, 108, 169 A.2d 307, 309 (1961) stated:

[ 487 Pa. Page 230]

So it appears that the law in Pennsylvania is clear that full faith and credit must be given to the decree of custody of a sister state so far as it determines the status of the child at the time it was issued, but, if the Pennsylvania Court has jurisdiction, it may, because of the interest of the Commonwealth in the child, and because the welfare of the child is a paramount consideration, and Page 230} because decrees of custody are temporary in nature and subject to modification by changing conditions, determine custody on the present facts and may even exercise its independent judgment on the same facts that determine the foreign state's order. (citations omitted) (emphasis added).

While this case deals with decisions by sister states in custody matters, its applicability has the same force between sister counties. It was the recognition of the temporary nature of custody decrees which was the basis of the decision in Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524 (1930). There the issue of res judicata in custody proceedings was directly addressed and the lower court chastised for refusing "to hear evidence as to present conditions or pass upon the merits of the case when heard." Commonwealth ex rel. v. Daven, supra, 298 Pa. 419, 148 A. at 525.

In our opinion, the true view of the question is that, where the custody of a child has been passed upon by the proper court in one jurisdiction, who has heard the case and made an adjudication incorporating therein certain findings of facts, the facts so found should, as to the parties participating therein, be treated as established and not open to question in another jurisdiction, especially where the parties so appearing neglected to avail themselves of the statutory right of appeal. Upon those facts and any others that may be presented, the court, where the matter is again brought up, must determine the ultimate question of the best interests of the child. Whether the same conclusion should be reached, even on the same facts, depends on the judgment of the court rehearing the case. Id., 298 Pa. at 422, 148 A. at 527.

It, therefore, seems proper to agree with Justice Walling when he quoted another court: "Judgments and decrees concerning children are never res judicata as to facts and conditions subsequently arising." Commonwealth ex rel. v. Daven, supra, 298 Pa. 421, 148 A. 526. See Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Super. 332, 264 A.2d 420 (1970). In the instant case, the record fully supported the

[ 487 Pa. Page 231]

Washington County court's result. We have found no jurisdictional or venue objection that would warrant the setting aside of that judgment. Moreover, we are not persuaded that the best interest of the child will be best served by an adherence to a sterile doctrine of time priority of judgments.

The decree of the Washington County Court of Common Pleas, Orphans' Division, as to the appointment of guardianship of the person of the minor, R. L. L., is affirmed.

ROBERTS, Justice, dissenting.

I dissent. The majority concludes that the Orphans' Court Division of the Court of Common Pleas of Washington County correctly heard and granted appellees' petition for guardianship of the person of their granddaughter, R. L. L. The majority does so even though: (1) another court of this Commonwealth, the Court of Common Pleas of Cameron County, had already assumed jurisdiction in the matter and, after full hearing, entered an order that appellant, the child's natural mother, is entitled to custody, (2) the Superior Court affirmed this order, and (3) appellees have failed to demonstrate why they could not present their claim in Cameron County. In my view, sound judicial discretion required the Washington County Orphans' Court here to defer to the Court of Common Pleas of Cameron County and to dismiss appellees' petition.

There is no doubt that the Washington County Orphans' Court had subject-matter jurisdiction to hear appellees' petition. See 20 Pa.C.S. § 5111(a). It is equally true, however, that appellees sought to litigate the precise issue already adjudicated by the Cameron County Court.*fn*

[ 487 Pa. Page 232]

It is true that in custody matters the need may arise for a reexamination of a previous adjudication in light of changed circumstances. See e. g., Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930). But in my view, subsequent determinations are more properly made by the court making the initial determination. The first court entering judgment is already familiar with the matter, and its expertise surely will facilitate disposition.

This policy of deference, though, would promote more than judicial economy. It is well-documented that parties involved in custody disputes have shifted children from one location to another solely for the purpose of obtaining a favorable forum. Apart from its effect upon the certainty of judgments, this shifting has an obvious impact upon the child caught between litigants.

Our Legislature has recognized the above concerns and has implemented this policy of deference. The Commonwealth Child Custody Jurisdiction Act, Act of April 28, 1978, P.L. 108, §§ 1 et seq., 11 P.S. §§ 2401 et seq. (Supp.1979), expressly directs that, except in limited circumstances,

"If another court has made a custody decree, a court before which a petition for modification is pending shall not modify the decree of the other court unless it appears to the court before which the petition is pending that the other court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify its decree and the provisions of section 9(b) of this act will not be violated by an exercise of jurisdiction by the court before which the petition is pending."

Id., § 15(a). See also id., § 4 (jurisdictional prerequisites). This section is designed to "avoid jurisdictional competition and conflict with courts of the respective counties of the Commonwealth in matters of child custody which have in the past resulted in the shifting of children from county to

[ 487 Pa. Page 233]

    county with harmful effects on their well-being." Id. § 2(a)(1). See also id., §§ 2(a)(2)-2(a)(9). Although this legislation was not expressly effective at the time appellees sought appointment of guardianship of R. L. L.'s person, its principles are indisputably sound and should be adopted by this Court. See Ellenbogen v. County of Allegheny, 479 Pa. 429, 438, 388 A.2d 730, 734-35 (1978) (citing cases).

Accordingly, I would vacate the Washington County Orphans' Court's appointment and direct that appellees' petition be dismissed.

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