filed: May 25, 1984.
MARGARET J. ADRIANCE
RANDY J. ADRIANCE AND VICKI L. ADRIANCE. APPEAL OF RANDY J. ADRIANCE
No. 02333 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Tioga County, Family Division, at No. 565 Civil Division. 1978
Warren R. Baldys, Jr., Williamsport, for appellant.
Gerald W. Seevers, Williamsport, for appellees.
Spaeth, President Judge, and Beck, and Hoffman, JJ.
[ 329 Pa. Super. Page 171]
Appellant, Randy J. Adriance, contends that the lower court erred in (1) enforcing its previous decree awarding custody of the parties' children to appellee, Margaret J. Adriance, and (2) refusing to recognize the Nevada custody decrees awarding custody to appellant, and the Maryland order recognizing the Nevada decree. We find that the lower court correctly resolved these issues under the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. § 5341 et seq., and, accordingly, affirm the lower court's order.
The parties were married in June of 1972. On April 17, 1978, appellant left the family home in Lawrenceville, Pennsylvania, without warning or notice of his destination, and took with him the parties' two children, who were then ages three and five years old. On May 8, 1978, appellee petitioned the lower court for custody of the children and on
[ 329 Pa. Super. Page 172]
May 9, the court issued a rule to show cause why the relief sought in the petition should not be granted, returnable for a hearing on June 22, 1978. A copy of the petition was served by certified mail dated May 18, 1978, on appellant at his last known address in Denver, Colorado.*fn1 At the June 22 hearing, appellant failed to appear and the lower court awarded custody of the children to appellee.
On June 19, 1978, appellant filed a divorce action in Elko County, Nevada, and service was effected on appellee on June 23. On August 1, 1978, the Nevada court granted the divorce and awarded custody of the children to appellant by default. On October 24, 1978, appellee moved to open the custody portion of the Nevada judgment and for a hearing. On November 10, 1978, the Nevada court granted the motion and held a hearing on January 22, 1978, at which time both parties presented evidence. On January 24, 1979, the Nevada court awarded custody to appellant and visitation to appellee for the month of July each year.
In July, 1979, appellee, exercising her visitation rights, picked up the children from their paternal grandparents' home in Lawrenceville, Pennsylvania, and took them to Maryland, where she had moved. She did not return the children at the end of the month, believing the Pennsylvania custody decree to be valid in Maryland.
Appellant located appellee in Annapolis, Maryland, and petitioned the Maryland court for recognition and enforcement of the Nevada decree. Following a hearing on August 17, 1979, the Maryland court recognized and enforced the Nevada custody decree. Appellee was not notified of this hearing and, accordingly, failed to appear.
Appellant then took the children to Nevada and, on January 31, 1980, upon his affidavit and following a hearing, the Nevada court held appellee, who was absent, in contempt and amended its prior custody decree to restrict appellee's
[ 329 Pa. Super. Page 173]
July visitations to the paternal grandparents' home under the supervision of either appellant or the grandparents.
In July, 1983, while the children were residing with their grandparents in Lawrenceville, Pennsylvania, pursuant to the amended Nevada decree, appellee petitioned the Pennsylvania lower court on July 25 for a writ of habeas corpus, challenging the legality of the grandparents' and appellant's custody, and requesting enforcement of the Pennsylvania June 28, 1978 order and non-recognition of the Nevada decrees. The writ was issued and served on the paternal grandmother, who subsequently appeared before the lower court on July 26, 1983. The court ordered that the Tioga County Domestic Relations Department assume temporary custody of the children pending a hearing and forbade the removal of the children from Pennsylvania. On August 3, 1983, appellant appeared to object to the lower court's subject matter jurisdiction, and on August 5, took the children to California in violation of the court order. On August 15, 1983, the lower court ruled that it could not hold an evidentiary hearing with respect to best interests because it lacked subject matter jurisdiction under the UCCJA. However, the lower court did enforce its prior custody decree of June 28, 1978, granting custody to appellee.
On August 23, 1983, appellee filed a criminal complaint against appellant in a Pennsylvania court, charging him with interference with custody of children, 18 Pa.C.S.A. § 2904, and extradition papers were issued. Appellant was arrested in Bakersfield, California, and imprisoned to await an extradition hearing. The children were placed in The Department of Welfare Shelter Home in California. Appellant has been released on bail and now awaits the extradition hearing in California. The children are in his custody in California.
On September 6, 1983, appellant filed the instant appeal from the August 15, 1983 order.
[ 329 Pa. Super. Page 174]
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.
42 Pa.C.S.A. § 5344. "Home state" is defined as "[t]he state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months[.]" Id. § 5343.
Here, the lower court properly determined on August 15, 1983, that it lacked subject matter jurisdiction under the UCCJA to hold an evidentiary hearing on the children's best interests. Pennsylvania is no longer the "home state" of the children because they have been living in California for the past five years and appellee has been living in Maryland for several years. None of the parties now have a "significant connection" with Pennsylvania, nor is there available in Pennsylvania "substantial evidence concerning the present or future care, protection, training, and personal relationships of the [children]." Two other states involved in this dispute, California and Maryland, appear to have proper bases for UCCJA jurisdiction and have not declined such jurisdiction. There are no allegations of child abandonment, neglect or abuse.
However, we hold that the lower court also correctly determined that it did have jurisdiction to enforce its prior custody decree of June 28, 1978, pursuant to the habeas corpus action instituted by appellee on July 25, 1983. For a court to have jurisdiction in a habeas corpus proceeding for child custody, the children must either be physically present in the state, reside in the state, or be domiciled in the state. Wolf v. Weymers, 285 Pa. Superior Ct. 361, 365, 427 A.2d 678, 680 (1981); Coombs v. Coombs, 225 Pa. Superior Ct. 304, 307, 303 A.2d 498, 499 (1973). Cf. Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968) (courts have
[ 329 Pa. Super. Page 176]
inherent power to enforce their orders and decrees). See P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law 8-11 (1982) ("[I]n cases in which a party resorts to habeas corpus to enforce an already existing decree, UCCJA . . . jurisdictional requirements need not be met for the court to grant the requested enforcement remedy."). Here, the children were physically present in Pennsylvania when appellee petitioned the lower court for the writ of habeas corpus and the court assumed jurisdiction. They only left Pennsylvania because appellant took them to California in violation of the court order.
Because the UCCJA provisions are concerned with a court's jurisdiction to make an initial or modified custody determination, they are relevant in determining the merits of this appeal.
The first question is whether the lower court had jurisdiction when the initial Pennsylvania custody decree of June 28, 1978, was entered. We find that the Pennsylvania court had jurisdiction to make the initial custody decree by virtue of its being the children's "home state". See 42 Pa.C.S.A. § 5344(a)(1). The children resided with their parents in Lawrenceville, Pennsylvania, from the moment of their births until April 17, 1978, when appellant removed them from the Commonwealth. Appellee petitioned for custody in Pennsylvania on May 8, 1978, at which time no other state could claim UCCJA jurisdiction. Because the June 28, 1978, decree has never been modified, it is binding on the parties under § 5353 of the UCCJA. See 42 Pa.C.S.A. § 5353; Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 188-189, 423 A.2d 333, 336 (1980).*fn2
[ 329 Pa. Super. Page 177]
(1) It encouraged Randy's [appellant's] abduction of the children designed to obtain a custody award, whereas our policy is to discourage such abductions.
(2) It failed to facilitate enforcement of this State's prior valid custody order, whereas our policy is to facilitate enforcement of valid orders.
(3) It failed to cooperate with this court to avoid jurisdictional competition, whereas our policy is to so cooperate.
(4) And it failed to assure litigation in the state where the family and child have the closest connections and significant evidence exists, whereas our policy is to strive for such assurances. Sec. 42 Pa.C.S. 5342.
(Lower Court Opinion at 7-8). The lower court also noted that the Nevada court failed to acknowledge the prior Pennsylvania decree or proceedings despite its awareness of them and did not decline jurisdiction. See Lower Court Opinion at 8. Accordingly, we cannot recognize and enforce the Nevada decree because it's jurisdictional validity, if any, was limited to Nevada. It follows that the amended Nevada decree is also unenforceable.
Because of our conclusion that the Nevada court lacked UCCJA jurisdiction to make a custody determination, we find that the Maryland order of August 17, 1979, recognizing and enforcing the Nevada decree as a decree of the State of Maryland, cannot be recognized and enforced by the courts of this Commonwealth. Appellee was never notified of the Maryland hearing and was not present or represented at such hearing. The question of Pennsylvania jurisdiction vis-a-vis Nevada jurisdiction was never addressed by the Maryland court. Moreover, the Maryland order relied on appellant's petition which erroneously stated that the Nevada decree had been made under factual circumstances meeting the jurisdictional standards of the UCCJA, which Maryland had enacted.
[ 329 Pa. Super. Page 179]
Under these circumstances, we hold that the lower court properly (1) enforced the initial Pennsylvania decree awarding custody of the children to appellee and (2) refused to recognize the Nevada custody decrees and the Maryland order.*fn3 Accordingly, we affirm the August 15, 1983 order of the court below.