Appeal from the Order of the Court of Common Pleas of Montgomery County as Civil Action-Law No. 85-13135 entered on September 3, 1985.
Harry M. Byrne, Jr., Philadelphia, for appellee.
Olszewski, Tamilia and Kelly, JJ.
[ 354 Pa. Super. Page 408]
Appeal from the Order of the Court of Common Pleas of Montgomery County as Civil Action-Law No. 85-13135 entered
[ 354 Pa. Super. Page 409]
on September 3, 1985. We affirm, in part, and quash the appeal in part.
The facts of the case are as follows: appellant and appellee Gary Levinson and Susan Austrian Levinson, respectively, were married and divorced in Minnesota.*fn1 During their marriage they had two sons. Custody of the minor children was shared by the parents after the divorce; each parent had joint legal and physical custody. Later the parents renegotiated their original custody arrangement; a court ordered stipulation was entered into on August 6, 1984. Each parent continued to be the children's legal and physical custodian. Ms. Austrian was to retain physical custody of the boys during the school term at her domicile in the Virgin Islands; Mr. Levinson would care for the boys during all their vacations in Pennsylvania. The parties further stipulated Minnesota would retain jurisdiction of subsequent custody modifications.
This arrangement was in effect when the youngest boy, Todd, first appeared to be experiencing difficulties in school. He was not promoted from first to second grade. Over the summer, while in Mr. Levinson's custody, Todd was tutored, and finally tested for learning disabilities. Upon receiving a diagnosis of learning disability from medical personnel in Montgomery County, Pennsylvania, Mr. Levinson asked Ms. Austrian if he could retain custody of both children in order that Todd might be enrolled in a special school in Pennsylvania, and so that the boys need not be separated. Ms. Austrian refused. Mr. Levinson then commenced legal action to retain custody of the boys.
Mr. Levinson filed a motion on or about August 12, 1985 in the Court of Hennepin County, Minnesota, pursuant to § 5348 of the Uniform Child Custody Jurisdiction Act (UCCJA), requesting Minnesota declare itself an inconvenient
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forum, despite the parties' 1984 agreement to resolve custody disputes in Minnesota.*fn2 The Minnesota referee, on August 15, declined to refuse jurisdiction, issuing no opinion.
On August 19, Mr. Levinson, appeared before the Honorable Albert Subers, J., in Montgomery County Common Pleas Court, Pennsylvania, and petitioned for a stay of the existing custody order. That stay was granted pending a full hearing on the merits of Mr. Levinson's Rule and Petition, which requested that Pennsylvania assert jurisdiction to modify the existing custody arrangement. Ms. Austrian filed preliminary objections thereto, challenging, inter alia, the exercise of jurisdiction by Pennsylvania. On August 23, prior to the hearing in ...