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NAOMI A. GRUN v. BENNIE E. GRUN (08/02/85)

filed: August 2, 1985.

NAOMI A. GRUN
v.
BENNIE E. GRUN, APPELLANT. BENNIE E. GRUN, APPELLANT, V. NAOMI A. GRUN



No. 804 PITTSBURGH 1984, No. 805 PITTSBURGH 1984, Appeal from the Order of the Court of Common Pleas, Somerset County, at Nos. 202 Divorce 1982 and 368 and Civil 1983, Civil Division.

COUNSEL

David J. Flower, Assistant District Attorney, Indiana, for appellant.

Joseph B. Policicchio, Somerset, for appellee.

Del Sole, Montgomery and Bucher,*fn* JJ.

Author: Del Sole

[ 344 Pa. Super. Page 435]

Appellant, father, appeals from a trial court order which denied his petition for enforcement of a Texas custody decree, and which granted Appellee, mother, a hearing in Pennsylvania on the merits of her petition for custody. Although the issues presented on appeal are phrased by the parties in a variety of ways, each deals with the propriety of the trial court's refusal to recognize and enforce a Texas custody decree.

The relevant facts are as follows: Early in 1980, the parties established a relationship which resulted in their cohabitation in the state of South Carolina. A short while later, the parties moved to Appellant's home state, Texas. Appellee established residence in Texas, and in August, she obtained a divorce from a Mr. Hunter. Appellee and Mr. Hunter had a son, and Appellee obtained custody of the child in Texas through a default proceeding. Thereafter, the parties moved to Somerset County, Pennsylvania, with or near Appellee's parents. While residing in Somerset County, Appellant and Appellee traveled to Cumberland, Maryland and on September 9, 1980 they were married. The parties continued to live in Somerset County until December when they returned to Texas. The subject of this proceeding, the parties' son, Joshua, was born in Texas on May 27, 1981. Appellant, Appellee and the two children continued to reside in Texas until Appellee returned to

[ 344 Pa. Super. Page 436]

Somerset County with her two sons on or about June 20, 1982.

Following the mother's move in June 1982, a series of legal proceedings were instituted. On July 19, 1982, the father filed an action in Texas seeking a divorce and custody of Joshua. Appellee, mother, filed a complaint in divorce including a count for custody on August 9, 1982 in Somerset County. The next day the Texas complaint was served by the sheriff of Somerset County on the mother. On August 12, 1982, the Court of Common Pleas, Somerset County made an ex parte order which confirmed custody of Joshua in the mother pending a custody hearing. Subsequently, on September 21, 1982, a Texas default decree was entered divorcing the parties and awarding primary custody of Joshua to the father. The decree stated that the mother "was served, failed to answer, did not appear, and wholly made default". In October, the mother petitioned the Pennsylvania court to forbid the father from taking physical custody of Joshua. A hearing date was set for December 6, 1982. On that date, the father also filed preliminary objections on jurisdictional grounds. The Somerset County Court issued an order on May 4, 1983, staying all proceedings on the condition that (a) the Texas court, "after fully hearing both parties", make a determination of a more appropriate forum, and (b) if it is determined that Texas is the more appropriate forum, the Texas court should set aside, vacate, or open its custody decree to a full hearing on the merits of the parties respective claims for custody.

Following the father's motion in Aid and Clarification of Judgment, the Texas court found that proper jurisdiction and venue for this matter existed in the state of Texas, and that Texas, not Pennsylvania, would be the proper forum for further actions in the matter. The court also found that its previous custody decree was a valid and final judgment. Further, the Texas court stated that it had no authority to sua sponte order a trial de novo, as requested by the Pennsylvania Court, absent filing of a motion in the nature of a Modification or Bill of Review. The father filed this

[ 344 Pa. Super. Page 437]

    order with the Pennsylvania Court, along with a petition for enforcement of the order.

Somerset County's most recent action in this matter came on May 29, 1984, when it issued an Opinion and accompanying Order. The order decreed that: (1) since the "Texas court has failed to undertake any judicial inquiry into the custody of the child according to the child's best interest, this Court, having concurrent jurisdiction, is the more appropriate forum for doing so." (2) the "portion of our Order of May 4, 1983, staying all proceedings in this Court concerning custody of the child is vacated, and leave is granted for either party to file a scheduling praecipe for hearing on the merits of the mother's petition for custody sec reg.", and (3) "the father's petition for enforcement of the Texas default custody decree is denied." The father, thereafter, timely filed this appeal.

Before discussing the merits of Appellant's claim, we must first determine whether the Order from which Appellant appeals, is a final order. This Court has jurisdiction only over final orders, and our lack of appellate jurisdiction can and should be raised sua ...


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