Barndt v. Barndt

• Decision Date: 30 August 1990
• Citation: 397 Pa.Super. 321,580 A.2d 320
• Parties: , 59 USLW 2199 Joel BARNDT, Appellee, v. Kathleen Ann BARNDT, Appellant. (Two Cases)
• Court: Pennsylvania Superior Court

Page 320

580 A.2d 320

397 Pa.Super. 321, 59 USLW 2199

Joel BARNDT, Appellee, v. Kathleen Ann BARNDT, Appellant. (Two Cases)

Superior Court of Pennsylvania.

Argued Sept. 19, 1989.

Filed Aug. 30, 1990.

[397 Pa.Super. 323] Amy Ershler, Bloomsburg, for appellant.

Susan Muse Hill, Bloomsburg, for appellee.

Before TAMILIA, KELLY and CERCONE, JJ.

KELLY, Judge:

Appellant, Kathleen Barndt, appeals from an order of the Court of Common Pleas of Columbia County. The order granted primary physical custody of her sons, Michael and Kristopher, to their father, Joel Barndt, thus modifying a prior decree issued in North Dakota which had granted the appellant primary physical custody. While the appeal raises questions of substantive error, the sole issue addressed in this opinion is whether the courts of Pennsylvania had subject matter jurisdiction to hear the modification petition of the appellee.

Initially, we consider whether subject matter jurisdiction exists under Pennsylvania law. We find that this determination would require remand for factual determinations not made by the trial court. We note that the present record appears to demonstrate an absence of subject matter jurisdiction under Pennsylvania law. We find remand unnecessary, however, as the undisputed facts establish that even if subject matter jurisdiction could be asserted under Pennsylvania law, a federal statute nonetheless bars assertion of such jurisdiction under the facts of the instant case. Consequently, we vacate the orders of the trial court, and relinquish jurisdiction of this case to the courts of North Dakota.

FACTS AND PROCEDURAL HISTORY

The relevant facts may be accurately summarized as follows. Joel and Kathleen Barndt were married in 1977 and divorced in 1983. North Dakota had been the marital domicile. During the course of their marriage, Joel adopted Michael, who was Kathleen's child from a former marriage, and Kristopher was born to the couple. Following the divorce, Kathleen, who had been awarded custody, continued living in North Dakota with the boys. Joel continued to live in North Dakota until December 1985, when he moved into his parents' home in Pennsylvania. In June 1986, the boys came to Pennsylvania for an extended visit which had been arranged and agreed upon by Joel and Kathleen. In March 1987, Joel refused to return the children as agreed and instead petitioned the Columbia County court for custody which was granted by order entered April 10, 1987. The order did not address the jurisdiction of the court.

Subsequent to this change in custody Kathleen appealed to the North Dakota courts to prevent enforcement of the Pennsylvania decree. While not agreeing with this Commonwealth's assumption of jurisdiction, North Dakota declined to take action conflicting with that of the Pennsylvania courts.

Finally, in May 1988, Kathleen Barndt was afforded a hearing in Columbia County to determine the best interests of Michael

and Kristopher. Her appeal raised the deficiencies in the conduct of the hearing, quality of the evidence gathered and considered, as well as the deficiencies in the opinion of the trial court issued subsequent to the hearing. These substantive issues can not be reached here, as our review of the record reveals that the courts of Pennsylvania lacked subject matter jurisdiction in the initial proceeding modifying the North Dakota decree, and in all subsequent custody proceedings.

I. AUTHORITY TO RAISE SUBJECT MATTER JURISDICTION SUA SPONTE

In order to have the power to determine the right to custody as between litigants, a court must have subject matter jurisdiction over the person of the child. In re Sagan, 261 Pa.Super. 384, 396 A.2d 450 (1978); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951). A court has the inherent power to determine on its own motion whether it has the jurisdiction to decide the cause before it. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). Therefore, even if a party fails to raise this issue by objection or exception in the court below, it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction. Cathcart v. Crumlish, 410 Pa. 253, 189 A.2d 243 (1963); Marcus v. Diulus, 242 Pa.Super. 151, 363 A.2d 1205 (1976). Orders of a court which is without proper subject matter jurisdiction are without legal force. Commonwealth v. Miller, 306 Pa.Super. 468, 452 A.2d 820 (1982); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980).

II. APPLICATION OF PA UCCJA

In determining whether the trial court had subject matter jurisdiction we look first to Pennsylvania law. Unfortunately, because the question of jurisdiction was not addressed in the trial court, factual findings essential to a determination of whether subject matter jurisdiction could be asserted over this case under Pennsylvania law, were not made by the trial court. Though the trial court must make these factual determinations initially, we note that the present record contains no facts upon which jurisdiction could be based under Pennsylvania law.

This case involves an interstate custody dispute. The jurisdictional aspects of such disputes are problematic.

Under Article IV, § 1 of the United States Constitution, each state is required to give full faith and credit to the public acts, records and judicial proceedings of every other state. The codification of this constitutional mandate in 28 U.S.C. § 1738, and its precondition that there be finality of judgment, however, left the full faith and credit clause inapplicable to child custody orders. By necessity, such orders are modifiable in the rendering state when the best interest of the child so require; and therefore, such orders lack the necessary finality for protection under the full faith and credit clause. Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); New York ex rel Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Additionally, procedural defects may preclude enforcement under the full faith and credit clause of even arguably "final" custody orders. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). The unfortunate result of this lack of recognition and enforcement of decrees of sister states was the constant uprooting and movement of children from state to state in their parents' efforts to obtain or enforce conflicting custody orders.

In 1977 Pennsylvania became a signatory to the Uniform Child Custody Jurisdiction Act (UCCJA). The purpose of the Act was to provide stability to the home environment and to family relationships by discouraging continuing controversy over child custody and visitation; to avoid jurisdiction disputes; to deter abductions; to avoid relitigation; to promote comity; and to assure that litigation concerning child custody takes place ordinarily in the state In furtherance of its stated purposes, the UCCJA, as codified in Pennsylvania, (Pa.UCCJA), includes specific provision for situations in which another state has rendered a prior custody order. Under 42 Pa.C.S.A. § 5355, "[i]f a court of another state has made a custody decree, a court of this Commonwealth shall not modify that decree unless: (1) it appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and (2) the court of this Commonwealth has jurisdiction" (emphasis added).

in which the child and his family have the closest connection. Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980), affirmed 492 Pa. 183, 423 A.2d 333 (1980).

The intention of the Pa.UCCJA in creating continuing jurisdiction in the initial decree state was to achieve greater stability of custody decrees, and to avoid forum shopping by insuring that the courts of only one state should have responsibility for the custody of a particular child. It was hoped that this would stabilize the home environment of children of divorced parents. In actual practice, as we see in the present case, continuing jurisdiction has often been ignored with jurisdiction assumed inappropriately by a court of a sister state, thus defeating in large measure the intent of the drafters of the uniform act. ¹

The provisions of 42 Pa.C.S.A. § 5344(a) set forth the conditions governing the exercise of jurisdiction over an interstate custody dispute under Pennsylvania law. Because the children had resided in Pennsylvania for the past six months, home state status existed to fulfill the requirement of 42 Pa.C.S.A. § 5344(a)(1)(i). We assume that 42 Pa.C.S.A. §§ 5344(a)(3), 5344(a)(4) do not apply. The record reveals that the father's home was satisfactory for placement under 42 Pa.C.S.A. § 5344(a)(5). Hence, the entire question of whether jurisdiction may be asserted properly under Pennsylvania law, turns upon whether the requirement of 42 Pa.C.S.A. § 5344(a)(2) has been met.

Under 42 Pa.C.S.A. § 5344(a)(2), before a Pennsylvania court may assert jurisdiction it must find first that:

(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and

(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child.

The Commissioners' notes explaining the applicable section of the model UCCJA in pertinent part provide:

Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes...