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MARTIN S. JAINDL v. DOROTHY J. JAINDL MYERS (01/23/89)

filed: January 23, 1989.

MARTIN S. JAINDL, RESPONDENT,
v.
DOROTHY J. JAINDL MYERS, PETITIONER



Petition No. 252 E.D. Allocatur Docket 1988 for Allowance of Appeal from the Order of Superior Court dated December 30, 1987, at No. 01009 Philadelphia 1987, 375 Pa. Super. 628, 541 A.2d 36, reversing order of Court of Common Pleas of Montgomery County entered March 5, 1987, Civil No. 84-7026. Prior Report: 375 Pa. Super. 628, 541 A.2d 36.

Nix, C.j., files a dissenting opinion.

Author: Per Curiam

[ 520 Pa. Page 147]

ORDER OF COURT

Petition for allowance of appeal is granted, the order of the Superior Court is reversed on the basis of Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), and the order of the Court of Common Pleas of Montgomery County is reinstated.

NIX, Chief Justice, dissenting.

I dissent.

[ 520 Pa. Page 148]

By today's order, the majority has taken another unnecessary and unwise step away from a longstanding and beneficial rule governing the modification of court-ordered child custody arrangements. Because today's decision is based on Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), it is implicitly a statement that the original custody order involved in the instant case was modifiable without proof of a "substantial change in circumstances."

Prior to this Court's decision in Karis v. Karis, a well settled rule in this Commonwealth was that modification of a child-custody order had to be based on a "substantial change in circumstances" and the "best interests" of the child. In re Estate of R.L.L., 487 Pa. 223, 409 A.2d 321 (1979); Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524 (1930); Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1985); Commonwealth v. Bishop, 185 Pa. Super. 362, 137 A.2d 822 (1958); Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286, 50 A.2d 713 (1947).

In connection with the principle last mentioned, the Superior Court established a rule requiring that, on a petition to change an existing child-custody order, the petitioner had to show, as a threshold matter, that there had been a "substantial change in circumstances." Constant A. v. Paul C.A., 344 Pa. Super. 49, 496 A.2d 1 (1985); Agati v. Agati, 342 Pa. Super. 132, 492 A.2d 427 (1985); Fatemi v. Fatemi, 339 Pa. Super. 590, 489 A.2d 798 (1985); Hartman v. Hartman, 328 Pa. Super. 154, 476 A.2d 938 (1984); Daniel K.D. v. Jan M.H., 301 Pa. Super. 36, 446 A.2d 1323 (1982). Unless the petitioner met that initial burden, a court would not re-examine the previous judicial determination as to custody. E.g., Constant A. v. Paul C.A., supra; Agati v. Agati, supra. The previous adjudication carried with it a presumption that it was in the "best interests" of the child.

The rule requiring a threshold showing of changed circumstances was based on a cogent and, in my view, compelling consideration: unless the petitioner seeking modification is required to make an initial showing of substantially

[ 520 Pa. Page 149]

    changed circumstances, the custodial status of the child could be subjected to destabilization by repeated spurious or frivolous petitions, and by the frequent relitigation of ...


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