APPEAL FROM THE ORDER ENTERED JANUARY 30, 1986 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. 85-11269
David W. McNulty, Springfield, for appellants.
Thomas H. Tropp, Media, for appellee.
Cirillo, President Judge, and Wickersham and Kelly, JJ.
[ 356 Pa. Super. Page 138]
This is an appeal from an order of the Court of Common Pleas of Delaware County. We are called upon to determine whether the hearing court erred in declining to exercise jurisdiction over a child custody dispute.
Appellant Mary Ann Beese married appellee Bernard Calehuff in Delaware in 1970. Subsequently, the couple moved to Florida, where Mary Ann gave birth to Gregory Calehuff in 1976. The couple divorced in Florida in 1981. The court which entered the divorce decree found Gregory to be a child "born of this marriage," and forbade either party from removing Gregory from Florida without the
[ 356 Pa. Super. Page 139]
permission of the other party or the court. The couple was nominally granted joint custody, but Mary Ann had primary physical custody, while appellee had liberal visitation rights. Appellant Mary Ann Beese tried to modify the restriction on Gregory's removal from Florida in 1984, but the requested relief was denied.
Nonetheless, appellant Mary Ann Beese, without the permission of appellee or the Florida court, brought Gregory to Pennsylvania in 1985. The two moved in with appellant Robert Beese, whom Mary Ann married the year after her divorce from appellee. One day after their arrival, appellants filed a petition in Delaware County Common Pleas Court seeking custody of Gregory. Their position as set forth in that petition is that appellant Robert Beese is actually the biological father of Gregory. In this connection, they assert that appellant Mary Ann Beese had no sexual contact with her then husband, appellee, at the time of Gregory's conception, but was having sexual intercourse with appellant Robert Beese at that time. They also point to blood tests, unavailable at the time of the Florida court proceedings, which indicate a 94 percent likelihood that Robert Beese is Gregory's father. They further assert that between the time of their marriage and the filing of the petition, Robert was forced to visit Mary Ann and Gregory by flying to Florida on weekends and holidays. In conclusion they justified Gregory's removal from Florida on the premise that appellee was himself going to remove Gregory from Florida if given the opportunity, and also that in any event the restriction imposed by the Florida court was unconstitutional. These contentions are not pursued on appeal.
Appellee responded to the petition by filing preliminary objections challenging Pennsylvania's jurisdiction over the matter. The hearing court sustained the preliminary objections, concluding that pursuant to the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq. (hereafter UCCJA), it could not properly assume jurisdiction over the matter. Specifically, the court pointed to Section 5349 of
[ 356 Pa. Super. Page 140]
the UCCJA, which dictates that a Pennsylvania court may decline to exercise jurisdiction if a party has violated a custody order from another state. The hearing court characterized appellant Mary Ann Beese's removal of Gregory from Florida as precisely the type of wrongdoing contemplated by the UCCJA. Appellants now assert that 1) the UCCJA does not forbid Pennsylvania courts from exercising jurisdiction in this instance; and 2) the hearing court erred ...