No. 2505 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Family Division, of Montgomery County at No. 81-20801.
Michael J. Rotko, Philadelphia, for appellant.
Bruce L. Goldenberg, Norristown, for appellee.
Hester, Wickersham and Popovich, JJ.
[ 312 Pa. Super. Page 307]
This case arises out of a custody dispute between Rochelle Levin Hovav and Yerucham Hovav, who are the parents of two minor children. On November 23, 1981, Rochelle Hovav filed a complaint in divorce against Yerucham Hovav in the Montgomery County Court of Common Pleas. The divorce complaint contained a petition for custody of the couple's children. A custody hearing was scheduled before the Honorable Horace A. Davenport on August 18, 1982.
Both Rochelle and Yerucham Hovav were present at the hearing and were represented by counsel. Judge Davenport took no testimony at the hearing but decided, on the basis of the Uniform Child Custody Jurisdiction Act,*fn1 that
[ 312 Pa. Super. Page 308]
his court was without jurisdiction to hear the case. This appeal was taken; appellate briefing*fn2 and argument followed on an expedited basis.
Rochelle Levin left her home in Pennsylvania and went to Israel. While in that country she met Yerucham Hovav, and the two were married on May 25, 1975. Rochelle and Yerucham Hovav had two children: Adam, a son born on September 23, 1976 and Adi, a daughter born on February 2, 1979. The family lived on Kibbutz Negbe.
Relations between husband and wife deteriorated and the couple separated, although both remained on the kibbutz. Rochelle Hovav wanted to return to the United States so the children could visit with their maternal grandparents. As part of the arrangements for this visit Rochelle and Yerucham Hovav signed an agreement which provided, inter alia, that Rochelle Hovav would not begin divorce proceedings in the United States, that the children would be returned to Israel and that custody of the children would be decided by an Israeli court.
Within several weeks of her return to Pennsylvania, Rochelle Hovav began divorce and custody proceedings. Yerucham Hovav sought a determination of the custody issue in Israel. At a custody hearing the Israeli court heard testimony from Yerucham Hovav, the children's paternal grandfather, a kibbutz official, and the children's kindergarten teachers. Custody of the children was given to Yerucham Hovav.
Rochelle Hovav's first issue is:
Whether the lower court's refusal to hear testimony on the merits of Appellant's custody petition resulted in an insufficient record ...