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ARDEN E. MELZER v. LYNN L. MELZER WITSBERGER. APPEAL ARDEN E. MELZER AT NO. 163. APPEAL LYNN L. MELZER WITSBERGER AT NO. 210 (02/05/82)

filed: February 5, 1982.

ARDEN E. MELZER
v.
LYNN L. MELZER WITSBERGER. APPEAL OF ARDEN E. MELZER AT NO. 163. APPEAL OF LYNN L. MELZER WITSBERGER AT NO. 210



NO. 163 PITTSBURGH, 1981, NO. 210 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas, Family Division -- Custody, of Greene County, at A.D. No. 90, 1980

COUNSEL

Harry J. Cancelmi, Jr., Waynesburg, for Melzer.

James H. McCune, Washington, for Witsberger.

Cavanaugh, Montemuro and Van der Voort, JJ.

Author: Montemuro

[ 299 Pa. Super. Page 154]

The instant action began as a Complaint and Petition for Custody of two children, Andrea and Ethan. The petition was filed by the father on January 22, 1980, in the Court of Common Pleas of Greene County, Pennsylvania.

An action in the same matter had been filed previously by the mother in her own jurisdiction of Ohio County, West

[ 299 Pa. Super. Page 155]

Virginia, on January 11, 1980. On January 23, 1980, after a hearing with both parents represented, the father appearing specially to contest jurisdiction, the West Virginia Circuit Court awarded custody to the mother.

The Pennsylvania Court, in response to the January 22, 1980, filing in this state, scheduled a custody hearing, and, upon Preliminary Objection of the mother, scheduled another hearing for February 22, 1980, to determine jurisdiction in the matter.

During the lunch break at this hearing, the parents appeared to be able to resolve their differences, and an Agreed Order was issued under the aegis of the Greene County Court, providing for custody that in essence gave each parent primary custody in alternate years. This Agreed Order was altered by stipulation of the parties on March 7, 1980. The issue of support was retained in Greene County by stipulation and was to be decided by the court if the parents were unable to agree.

In June, the parents were again specifically ordered to discuss the question of support. However, before that issue was resolved, either privately or before the court, the father, on July 16, 1980, petitioned again for custody.

The court interviewed the children on July 23, 1980, with attorneys for both parents present, and then scheduled a full hearing upon receipt of the mother's Petition for Custody. This hearing was held on August 14, 1980.

The matter was fully litigated, and the lower court weighed the complex matters concerning the best interests of the children.

The order of the court resulting from the decision of the trial judge on the record below determined that Greene County did have jurisdiction to decide the matter and gave custody to the father. Additionally, the order awarded certain child support sums to the mother about which there is no discussion in the record. Both parents appealed from

[ 299 Pa. Super. Page 156]

    the order; the mother appealed from the finding of jurisdiction and determination of custody; the father appealed from the support award.

This court affirms the finding of the court below as to its exercise of jurisdiction, although by a different process of reasoning. We also affirm the award of primary custody to the father as determined by the discretion of the lower court. As to the support, the order is vacated as of date of filing of this opinion, without prejudice to the mother's right to apply to the court of Greene County for whatever relief in the way of child support she may, in fact, require and prove.

FACTUAL HISTORY

The parties to this action resided in Greene County together from 1972 until 1976. In the spring of 1976 the father left the marital home and lived in neighboring Allegheny County while the mother and children remained in the family home. In August of 1978, the mother and children moved to West Virginia, and the father moved back into the residence in Greene County.

The children had been in the custody of their mother since 1976, and remained in her custody in West Virginia from August of 1978 until January 1980. At this time, the father informed the mother by telephone after a visitation that he ...


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