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ETHELENE G. MCLARIN v. BENJAMIN L. MCLARIN (01/31/86)

filed: January 31, 1986.

ETHELENE G. MCLARIN, APPELLANT,
v.
BENJAMIN L. MCLARIN, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, Family, No. 972 SA 1984.

COUNSEL

JoAnne C. Betlem, York, for appellant.

Rowley, Olszewski and Montemuro, JJ.

Author: Montemuro

[ 350 Pa. Super. Page 155]

This case is before us on appeal from an order entered by the York County Court of Common Pleas, Domestic Relations Division, dismissing appellant's complaint for child support which was filed on June 25, 1984, against her ex-husband, appellee herein.

Appellee filed a complaint in divorce in Maryland*fn1 which was granted in 1972. The Maryland divorce decree ordered that appellee be charged generally with the support and maintenance of the parties' five children, who were at that time, and have remained, in the custody of appellant. At the time of the filing of the complaint for child support in Pennsylvania, appellant was, as she still is, a resident of California.*fn2 All prior actions brought by appellant to enforce the child support order had been heard in Maryland and appellee had never been requested to appear in the court of any state other than Maryland in relation to his duty to pay child support. N.T. December 17, 1984, at 5.

Appellee raised an objection that the York County Domestic Relations Court lacks sufficient jurisdiction to enter an order on appellant's complaint initiating an action for child support. Appellee contended that because he is a Maryland resident and domiciliary, the Pennsylvania courts do not have personal jurisdiction over him pursuant to 42 Pa.C.S. § 6704(F) in conjunction with 42 Pa.C.S. § 5301(a)(1)(ii).*fn3

[ 350 Pa. Super. Page 156]

Both parties agreed that the question of the court's jurisdiction rests on the determination of appellee's domicile at the time of the filing of the complaint against him.*fn4 The Domestic Relations Court held a hearing on this issue on December 17, 1984. At the conclusion of the hearing, appellee was ordered to submit copies of his 1983 State and Federal tax returns.

On March 15, 1985, the hearing court entered an order dismissing appellant's complaint due to lack of personal jurisdiction over appellee.

Appellant raises three issues on appeal: (1) does the appellee's filing of a Pennsylvania State Income Tax return as a Pennsylvania resident establish residency for the purposes of jurisdiction in a support action; (2) does the evidence considered as a whole support the appellee's allegations of a Maryland domicile, and (3) are defendant's (appellee's) allegations as to his domicile credible.*fn5

We will address appellant's second issue first. At the hearing, appellee and his new wife were questioned extensively by the attorneys for both parties. Appellee testified that he was divorced from appellant in Maryland in 1971, the same year he retired from the Navy, and has resided in Maryland ever since. Appellee's employment involves onsite installation of pumps at various locations across the U.S. and abroad. This employment requires appellee to spend the majority of his time traveling. He testified that in the year prior to this support action, he spent five months overseas and had also spent considerable time, that year, traveling within this country. Appellee owns 2.5 acres of property adjacent to the home of his mother in Glen ...


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