D.L.S., Matter of

• Decision Date: 13 June 1980
• Parties: In the Matter of D.L.S. and J.L.S. Appeal of K.A.S., Natural Mother.
• Court: Pennsylvania Superior Court

Page 625

420 A.2d 625

278 Pa.Super. 446

In the Matter of D.L.S. and J.L.S.

Appeal of K.A.S., Natural Mother.

Superior Court of Pennsylvania.

Submitted April 16, 1980.

Filed June 13, 1980.

Eugene J. Brew, Jr., Erie, for appellant.

Kevin J. Kingston, Erie, for appellee.

Before PRICE, BROSKY and MONTGOMERY, JJ.

PRICE, Judge:

This appeal challenges the propriety of the hearing court's order dismissing appellant's preliminary objections to a petition for custody filed by the natural father. The petition alleged that the contestants, both lifelong residents of Erie County, were married on April 20, 1974, and produced two children-D.L., born February 26, 1975, and J. L., born July 18, 1978. In February of 1978, the parents separated, and appellant, accompanied by her firstborn son, moved to her parents' home in Erie, where her second son was born. Appellee continued to live and work in Erie, and on September 7, 1978, appellant returned with the children to the marital residence. She remained there until September 19, 1978, when she took the children and moved to Florida, where they now reside.

Appellee instituted this action in Pennsylvania on October 11, 1978, seeking a determination of custody of the children. Appellant's preliminary objections in response to the petition alleged that the court lacked jurisdiction to determine custody because the mother and children reside in Florida, making it the most convenient forum, and because a custody action was already pending in Florida. The hearing court received briefs by the parties, heard oral argument, and then dismissed the objections. Appellant claims that before rendering a decision on jurisdiction, the court was required by the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P. L. 29, No. 20, § 1, 11 P.S. § 2301, et seq., to take evidence by hearing, deposition or other manner. We disagree and, consequently, affirm the order of the court of common pleas.

The hearing court's disposition of preliminary objections is governed by Pa.R.C.P. No. 1028(c) which states: "The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise." (emphasis added). Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 313 A.2d 281 (1973). When no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone. Northvue Water Co. v. Municipal Water & Sewer Authority, 7 Pa.Cmwlth. 141, 298 A.2d 677 (1972); 4 Standard Pennsylvania Practice ch. 13, § 19. Appellant's preliminary objections raise an issue of law, jurisdiction, without raising any factual issues that would necessitate the reception of evidence. None of the dates or acts alleged in the petition that are critical to the determination of jurisdiction are disputed by appellant within her objections.

Furthermore, the petition placed sufficient information before the hearing court for it properly to determine that this matter is within its jurisdiction under the Uniform Child Custody Jurisdiction Act. That Act limits jurisdiction in the following manner:

"(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this State:

(i) is the home state of the child at the time of commencement of the proceeding; or

(ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State;

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

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

(ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(b) ... physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." 11 P.S. § 2304.

"Home state" is defined by the Act as the state in which the child lived with his parents or a parent for at least six consecutive months, and in the case of a child less than six months old, the state in which the child lived from birth. 11 P.S. § 2303. Clearly, the hearing court has jurisdiction under paragraph (1) since Pennsylvania continued to be the home state of the children despite their move to Florida. Until that time, both children had resided in Pennsylvania for their entire lifetimes and had lived in Florida less than a month when this custody proceeding was commenced.

The court also has a separate basis for jurisdiction under the strength of contacts test of paragraph (2). ² Both the parents and the children retain a significant connection with Pennsylvania because of the length of their residence here. Evidence concerning the children's present and future care, protection and training will have to be gathered almost entirely from Pennsylvania since appellee continues to live and work in Pennsylvania and the bulk of the witnesses who know the parties well and know of their past care of the children are located here. These contacts indicate that the best interest of the children will be served by finding jurisdiction in the courts of this Commonwealth.

Appellant argues that since this test for jurisdiction mentions the best interests of the child, it requires a hearing before the court can make that determination. We find, however, that the statute clearly defines the relevant considerations in determining the children's best interests and that application of the facts contained in the petition to these considerations leaves us no doubt that Pennsylvania is a favored forum for these proceedings. Since the hearing court was provided with the...