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submitted: June 9, 1986.


Appeal from the Judgment entered in the Court of Common Pleas of Westmoreland County, Civil at No. 7135 of 1983.


Anthony W. DeBernardo, Jr., Ruffs Dale, for appellant.

Robert M. Stefanon, Greensburg, for appellee.

Cavanaugh, Popovich and Montgomery, JJ.

Author: Popovich

[ 356 Pa. Super. Page 119]

This is an appeal from the judgment of the Court of Common Pleas of Westmoreland County dismissing Fred Scheafnocker/appellant's petition for custody of his minor children. We affirm.

The record discloses a course of events reflective of the present day dilemma in which courts from two states find themselves when parents attempt to secure custody of their child(ren) by surreptitious means and then enlist the aid of the state in which removal has been made to approve of the conduct so as to establish permanent custody in one parent and not the other.

Three hearings were conducted to resolve the issue of which State, Pennsylvania or Texas, had subject matter jurisdiction to decide the custody question. An examination of the transcripts produced thereby reveal that two children (Kevin, age 8; Colleen, age 10 at the time of the proceedings below) were born of the 1971 marriage between Joanne

[ 356 Pa. Super. Page 120]

    and Fred Scheafnocker. The two separated in June of 1978 and were divorced in April of 1983 in Pennsylvania.

Although the children were born in Pennsylvania, the family lived in Ohio from 1972 until the appellant was laid-off by United States Steel Corporation and transferred to Texas to work in 1978. Joanne and the children remained behind, and, in fact, moved to Pennsylvania (where her parents and relations lived) until the appellant could get things settled in Texas. However, the appellant's work was shortlived (one year) and his unemployment compensation expired thereafter. Nonetheless, the appellant did provide Joanne with some monies to assist in the payment of various expenses, which supplemented the welfare she received and became interspersed with income she was able to generate, at times, from employment.

From June of 1978 -- October of 1981, Joanne and the children lived in Allegheny County. In November of 1981 -- April of 1982, they lived in Westmoreland County, but, because of the mid-year change of address, the school district (Norwin) would not permit the children to complete the last month of the term.

As a result, in April of 1982, the appellant flew to Pennsylvania and drove the children back to Texas to enroll them in a Harris County school until the completion of the semester at the end of May. Joanne then went to Texas in June and returned to Pennsylvania with her son, while the daughter remained with the appellant. However, when Joanne could not get H.U.D. (federal) housing because of a waiting list or unemployment compensation, she and Kevin went back to Texas and the children attended the whole school year (1982-1983) there. During this same period of time, Joanne obtained a temporary job to help support the children because the appellant was unemployed, and so she could "save up enough money to return to Pennsylvania."

The situation in Texas was such, according to Joanne, that she could no longer remain because the appellant had been living with a girlfriend in the same mobile home where the children were staying. After one week of this arrangement,

[ 356 Pa. Super. Page 121]

    she moved in with her adopted daughter who was living in the same trailer park, and this afforded her the opportunity to take care of her children after school without having to live with the appellant.

Because Joanne felt that exposure to the appellant's living conditions were detrimental to the children, she returned to Pennsylvania at the completion of the 1983 school term and left a note to that effect (on June 27) for the appellant. Also, at this time, the divorce proceedings, which had been started in 1981 in Allegheny County, were completed (April, 1983).

For the 1983-1984 school session, Joanne enrolled the children at Hillcrest Elementary School in North Huntingdon, Westmoreland County, on August 30. They attended for one month before the appellant came from Texas on September 29 and removed them from this Commonwealth as they were boarding the school bus. Joanne was notified by the appellant of his actions (a little over an hour later) after he had left this jurisdiction.

On October 4, 1983, Joanne filed a complaint for custody in Westmoreland County (No. 1735 of 1983, C.P.). The appellant was notified and served the same by a Texas constable on October 14, with a hearing date set for November 10. The appellant did not appear on the advice of his out-of-state counsel.

At the November 10 proceeding, Joanne informed the court that earlier that same morning she had been served with a summons to appear in Texas on November 14 for a hearing. Of relevancy here, Joanne recounted that:

     a) Kevin and Colleen have an older brother (Martin, 15) and sister (Lisa, 14) from Joanne's prior marriage.

     b) The four children live together and get along well.

     c) The children have lived in Westmoreland and Allegheny Counties for the last five years.

     d) Colleen is a majorette and Kevin is a drummer in the school band.

[ 356 Pa. Super. Page 122]

    e) Kevin and Colleen are involved in community activities, as well as their friends and relatives living in the Westmoreland County area.

     f) She (Joanne) is presently employed and better able to support the children -- the appellant has been unemployed for the previous two years, he has no benefits and he is not capable of ...

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