No. 02781 Philadelphia 1984, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 84-10941.
Arthur L. Gutkin, Philadelphia, for appellant.
Bruce Goldenberg, Philadelphia, for appellee.
Montemuro, Popovich and Watkins, JJ.
[ 345 Pa. Super. Page 471]
This is an appeal from an order of the trial court which denied the petition to confirm custody which was filed by appellant-father, Robert C. Rohrer, against his former spouse, appellee-mother, Loretta L. Rohrer. We affirm.
The basic facts are undisputed and were set forth adequately by the trial court as follows:
The parties were married in St. Petersburg, Florida, on August 31, 1979. Two children were born during the marriage; Mya, on January 9, 1981, and Joshua, on March 15, 1983. The parties lived in St. Petersburg from the date of the marriage until May 7, 1984, when appellant left without notice and took the children with him to reside with his parents in Ardsley, Pennsylvania.
On May 29, 1984, appellee filed for divorce in Florida. Service was made on appellant shortly thereafter. However, appellant did not enter an appearance in the action. Pursuant to an order of the court in Florida, the marriage was dissolved and appellee was awarded custody on July 31, 1984.
On July 17, 1984, appellant filed the instant action to confirm custody. Appellee traveled from Florida to attend a hearing before a custody conciliator on September 12th. At that time, appellee also requested a hearing on the issue of jurisdiction. The trial court held a hearing that same day "since the issue of jurisdiction appeared to have merit"*fn1 under the Uniform Child Custody Jurisdiction Act. See the Act of October 5, 1980, P.L. 693, No. 142, § 201(a), 42 Pa.C.S.A. § 5341, et seq. The trial court concluded that jurisdiction was vested in the courts in Florida and ordered
[ 345 Pa. Super. Page 472]
the father to return the children to the mother's custody in Florida. This appeal followed.
Appellant raises the following two issues: (1) whether the trial court erred in not requesting the appellee to file responsive pleadings and thereafter allow the appellant time for discovery as requested so that the court may determine properly all of the facts and circumstances surrounding the welfare of the children; and (2) whether the trial court erred in ruling that jurisdiction was proper in the state of Florida rather than in the Commonwealth of Pennsylvania and also in directing that the mother should be awarded custody of the children per the Florida court order. We must reject appellant's contentions.
With respect to appellant's contention that the court should have granted him time for discovery, Pa.R.C.P. 4001 provides for the following:
DEPOSITIONS AND DISCOVERY
Rule 4001. Scope. Definitions
(a)(1) The rules of this chapter apply to any civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules including any action pursuant to the Eminent Code of 1964 or the Municipal Claims Act of 1923.
(2) These rules shall not apply to an action for divorce or for annulment of marriage, an action for support, or an action for custody of minor children except to the extent prescribed by the rules governing those actions . . . . (Emphasis added). Accord Pa.R.C.P. 1915.5(c) (In custody cases, "[t]here shall be no discovery unless authorized by special order of court".)
Additionally, the explanatory comments to Rule 4001 state:
The amendment excludes any automatic right to discovery in support proceedings. The vast majority of support proceedings involve wage earners of relatively modest means. The present intake and conference procedures and questionnaires to employers supply the basic
[ 345 Pa. Super. Page 473]
discovery needed as to earnings. The parties are generally familiar with the extent of each other's finances. Further discovery will not be needed in routine cases. To avoid the possibility of a defendant spouse using discovery as a tool for harassment, abuse and delay, the amendment requires leave of court in all support proceedings. This should be freely given where it is essential to a just disposition of the matter.
Proceedings for custody of minor children are subject to the same provision for leave of court. (Emphasis added)
Thus, it is clear that appellant is not entitled as of right to discovery in this action.
Appellant contends, however, that the trial court erred because "without responsive pleadings being filed by Appellee in the Court below, there is no way upon which issues can be framed by the appellant nor for this Court to make a proper determination." Brief for Appellant at 9. We must disagree.
Under Section 5366 of the Uniform Child Custody Jurisdiction Act, "reasonable notice and opportunity to be heard shall be given to the contestants . . . ." Additionally, when a "question of existence or exercise of jurisdiction" is raised, that case "shall be given calendar priority and handled expeditiously." 42 Pa.C.S.A. § 5366.
Although a different rule states that "[a] party must raise any question of jurisdiction of the person or venue by preliminary objection filed within twenty days,"*fn2 we find that the trial court's waiver of this particular rule was not an abuse of discretion since the question of jurisdiction was a matter of importance which had priority. See Cynthia H. v. Milton M., 328 Pa. Super. 332, 337, 476 A.2d 1357, 1359 (1984) ("a lower court will not be reversed either for waiving or refusing to waive noncompliance with ...