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JOSEPH E. H. v. JANE E. H. (12/05/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: December 5, 1980.

JOSEPH E. H., APPELLEE,
v.
JANE E. H., APPELLANT

No. 931 April Term, 1979 Appeal from the Orders of the Court of Common Pleas of Westmoreland County, Civil Div., at No. 9886 of 1977.

COUNSEL

Henry A. Hudson, Jr., Greensburg, for appellant.

Thomas J. Godlewski, Greensburg, for appellee.

Cavanaugh, Hoffman and Van der Voort, JJ. Cavanaugh, J., filed a concurring and dissenting opinion.

Author: Hoffman

[ 283 Pa. Super. Page 110]

Appellant contends that the lower court lacked jurisdiction to entertain appellee's petition for redetermination of custody of their minor son. Although we disagree, we nevertheless vacate the order of the lower court and remand for further proceedings consistent with this opinion.

On November 11, 1977, appellee-father instituted habeas corpus proceedings in the Westmoreland County Court of Common Pleas seeking custody of the parties' minor son.

[ 283 Pa. Super. Page 111]

At that time the parties, then husband and wife,*fn1 were living separately in Westmoreland County, and appellant-mother maintained custody of their son. After conducting several hearings the lower court, on July 19, 1978, issued an order granting custody of the child to the mother and allowing the father visitation for two hours each Saturday. Visitation was to be supervised for the first three Saturdays and unsupervised thereafter.*fn2 Immediately before the father's first unsupervised visitation was to take place, the mother and son left their home in Westmoreland County and took up residence in Maryland. The father commenced contempt proceedings against the mother for her alleged violation of the court's visitation order, and on August 24, 1978, the court issued a bench warrant for the mother's arrest. The warrant apparently was not executed, and no further actions were taken in the case until August 15, 1979. On that date the father filed a "Petition for Rehearing" in which he sought a redetermination of custody of the parties' son. The court scheduled a hearing on the father's petition for September 14, 1979. On September 12, 1979, the mother filed preliminary objections to the father's petition, alleging that the court was without jurisdiction of the matter because she and her son were residents of Maryland. The court conducted a hearing on September 14, as scheduled, at which it considered the jurisdictional issue and heard testimony from the father on the merits of his petition for redetermination of custody. Neither the mother nor her counsel appeared, although it is undisputed that she had notice of the hearing. The lower court dismissed the mother's preliminary objections and awarded custody of the parties' son to the father. From these orders the mother has taken this appeal.

[ 283 Pa. Super. Page 112]

The mother contends that the lower court was without jurisdiction to entertain the father's petition for redetermination of custody because both she and her son are residents of Maryland.*fn3 Jurisdiction in the present case is governed by the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P.L. 29, No. 20, § 1 et seq., 11 P.S. § 2301 et seq. (Supp. 1980-81) (the Act). Section 4(a) of the Act provides that

[a] court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(2) it is in the best interest of the child that a court of this State assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State; and

(ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships . . . .

11 P.S. § 2304(a). Additionally, section 4(c) of the Act provides that "[p]hysical presence of the child, while desirable,

[ 283 Pa. Super. Page 113]

    is not a prerequisite for jurisdiction to determine his custody." 11 P.S. § 2304(c).

In In matter of D.L.S. and J.L.S., 278 Pa. Super. 446, 420 A.2d 625 (1980), this Court held that the lower court had properly exercised jurisdiction under section 4(a)(2) of the Act. In that case the father instituted an action in Pennsylvania seeking custody of the parties' two minor children after the mother had taken the children from the parties' Pennsylvania home and established residence in Florida. The Court found that "[b]oth the parents and the children retain a significant connection with Pennsylvania because of the length of their residence here." Id., 278 Pa. Super. at 450, 420 A.2d 625 at 627. (All had been lifetime residents of Pennsylvania until the mother and children moved to Florida.) Additionally, the Court observed that

[e]vidence concerning the children's present and future care, protection and training will have to be gathered almost entirely from Pennsylvania since [the father] continues to live and work in Pennsylvania and the bulk of the witnesses who know the parties well and know of their past care of the children are located here.

Id. Accordingly, the Court concluded that "the best interest of the children will be served by finding jurisdiction in the courts of this Commonwealth." Id.

Similarly, in the present case the requirements for jurisdiction set forth in section 4(a)(2) of the Act have been met. Both the parents and the child have a significant connection with Pennsylvania because of the length of their residence here.*fn4 Their connection with this state is strengthened by the fact that the parties had previously litigated the question of custody of the child here, and were subject to an order of court concerning custody and visitation. Moreover, there can be no question that "substantial evidence concerning

[ 283 Pa. Super. Page 114]

    the child's present or future care, protection, training, and personal relationships" is available in Pennsylvania. 11 P.S. § 2304(a)(2)(ii). As in In Matter of D.L.S. and J.L.S., supra, the father continues to live and work in this state, and certainly many of the witnesses who are qualified to testify regarding the parties' fitness and ability to have custody reside here. Accordingly, we hold that the lower court properly assumed jurisdiction and dismissed the mother's preliminary objections.*fn5

Despite our disagreement with the mother's jurisdictional contention, we believe that she should be given another opportunity to address the merits of the father's petition for redetermination of custody. The mother's failure to appear at the September 14 hearing appears to have resulted, at least in part, from her counsel's confusion regarding the proper procedure for contesting the jurisdiction of the lower court. We do not believe that a procedural default arising from such confusion should preclude a parent from presenting evidence on such a sensitive and important matter as the modification of a custody decree. Although we do not condone the conduct of the mother in shunning the

[ 283 Pa. Super. Page 115]

September 14 hearing, we are ever mindful of the fundamental fact that "in all custody disputes, the best interests of the child must prevail; all other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well being." Garrity v. Garrity, 268 Pa. Super. 217, 221, 407 A.2d 1323, 1325 (1979). Cf. Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa. Super. 95, 380 A.2d 1299 (1977). Accordingly, we vacate the order of the lower court and remand this case to enable the mother to appear and address the merits of the father's petition for redetermination of custody.

Order vacated and case remanded for further proceedings consistent with this opinion.

CAVANAUGH, Judge, concurring and dissenting:

Based on the facts in the record, I am in complete agreement with the majority's reasoning that the lower court had jurisdiction in this matter. I also agree that this case should at least be remanded to enable the mother to appear and address the merits of the father's petition for redetermination of custody.

However, since the record may not contain relevant facts due to what I believe to be a procedural irregularity, I would expand the scope of the issues on remand to provide the appellant with an opportunity to argue and present evidence on the issue of jurisdiction in the lower court.

Instantly, the appellant had notice that a hearing was scheduled September 14, 1979. However, Westmoreland County Rule W501 provided that her preliminary objections as to jurisdiction would be argued weeks later. Appellant, therefore, relied on Rule W501's provisions as to the time when argument on her preliminary objections would be heard. Nevertheless, the lower court decided appellant's preliminary objections without notice to appellant that Rule W501 would not be followed and without notice that appellant's

[ 283 Pa. Super. Page 116]

    preliminary objections would be considered on September 14th, the time when a hearing on the merits of the custody issue was originally scheduled. On September 14th the court heard argument from appellee's counsel on the issue raised by the preliminary objections; appellant and her counsel did not appear, thus no evidence or argument by appellant was presented. Since appellant did not have notice that her preliminary objections would be considered at a time earlier than that provided by Rule W501, appellant was denied procedural due process by the lack of such notice. The lack of notice may have prejudiced appellant by preventing her from presenting evidence and argument on the jurisdiction issue. I would, therefore, expand the scope of remand to allow appellant the opportunity to argue and present evidence on the jurisdiction issue.


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