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09/22/97 LEE C. LARSON v. PAUL DIVEGLIA

September 22, 1997

LEE C. LARSON, APPELLEE,
v.
PAUL DIVEGLIA, APPELLANT.



Appeal from the Judgment of the Superior Court dated April 10, 1996 at No. 1928 PGH 1995, reversing the Order of the Blair County Court of Common Pleas entered September 26, 1995 at No. 95 DR 472.

Appeal from the Judgment of the Pennsylvania Superior Court dated April 10, 1996 at No. 1928 PGH 1995, reversing and remanding the Order of the Court of Common Pleas of Blair County, Civil Division, entered September 26, 1995 at No. 95 DR 472.

Composition OF The Court: Mr. Chief Justice John P. Flaherty. Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Nigro files a Dissenting opinion in which Madame Justice Newman joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY:

DECIDED: SEPTEMBER 22, 1997

This case presents the court with an issue of first impression: whether a person not a parent, who resides with and provides financial support for a child, has standing to petition the court for child support in the absence of a court order granting legal or physical custody to that person? We find that absent an order granting legal or physical custody a person does not have standing to bring an action for child support. Accordingly, for the reasons that follow, we reverse the decision of the Superior Court.

The instant action began on June 22, 1995 when Lee Larson, appellee herein, filed a complaint for child support against the appellant, Paul Diveglia, on behalf of appellant's natural son, Paul Diveglia II. The child, on behalf of whom child support was being sought, is the nephew by marriage of appellee. By virtue of a court order dated May 5, 1995 awarding temporary legal and physical custody of Paul Diveglia II to Gloria Larson, the child resides with appellee and his wife, Gloria Larson, who is the sister of appellant. The custody order does not include appellee, Lee Larson, as having either legal or physical custody of the child in question. Both parties concede that the child does in fact reside with Lee and Gloria Larson and that Lee Larson provides the sole financial support for Gloria, Lee and the child. The complaint seeking support from the natural father was instigated by Lee Larson and not joined by Gloria Larson. *fn1

Appellant filed preliminary objections to dismiss the complaint for support, on the basis that appellee was without legal standing to pursue an order for child support. The trial court granted the preliminary objections. On appeal to the Superior Court the order of the trial court was reversed.

The Superior Court determined that appellee, by having de facto physical custody of the child, possessed the requisite legal standing to bring a support action on the child's behalf. As this question is one of first impression in Pennsylvania, this court granted allocatur.

The decision of a trial court on an action for child support will not be disturbed on appeal absent an abuse of discretion. Oeler by Gross v. Oeler, 527 Pa. 532, 594 A.2d 649 (1991). An abuse of discretion occurs where there is an error in judgment, a manifestly unreasonable decision, or a misapplication of law. Coker v. S.M. Flickinger Company, 533 Pa. 441, 625 A.2d 1181 (1993).

It is beyond question that a parent owes an absolute duty of support to his or her minor children. Oeler, at 537, 594 A.2d at 651. The obligation to support one's child is not contingent upon the parent having custody. Luzerne County Children and Youth Services v. Cottam, 412 Pa. Super. 268, 603 A.2d 212, appeal denied, 530 Pa. 666, 610 A.2d 45, reconsideration denied, cert. denied, 506 U.S. 960 (1992). Standing to bring an action for support is governed by Pa.R.C.P. 1910.3, which provides:

An action shall be brought

(1) by a person, including a minor spouse, to whom a duty of ...


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