Friedman v. Friedman

• Decision Date: 14 June 1973
• Citation: 224 Pa.Super. 530,307 A.2d 292
• Parties: Morton H. FRIEDMAN v. Stephanie FRIEDMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 292

307 A.2d 292 224 Pa.Super. 530 Morton H. FRIEDMAN
v.
Stephanie FRIEDMAN, Appellant. Superior Court of Pennsylvania. June 14, 1973.

Page 293

[224 Pa.Super. 531] Ruth F. Cooper, Russellton, Lois J. McKee, McKeesport, for appellant.

June S. Schulberg, Pittsburgh, for appellee.

[224 Pa.Super. 530] Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

[224 Pa.Super. 531] HOFFMAN, Judge:

Appellant is before this Court on an appeal from the lower court's order awarding custody of minor children, a family car and other personal effects to the appellee.

Morton H. Friedman, the appellee, and Stephanie Friedman, the appellant, are husband and wife and the parents of two minor children. For several years the parties resided in Morgantown, West Virginia. Because of ongoing domestic difficulties,

Page 294

appellant left the marital domicile. On May 23, 1972, appellant and her children moved to Pittsburgh, Pennsylvania, where she acquired an apartment and enrolled her children in the public schools.

On January 25, 1972, appellant had instituted a divorce action in the Circuit Court of Monongalia County, West Virginia. Mike Magro, Jr., Esquire, entered an appearance as the attorney for appellant and notified the Court that he would accept service of process of all subsequent papers. Answer was filed on February 3, 1972. Thereafter, appellee filed a Petition for Custody of the minor children, as well as transfer of certain personalty into his possession. Notice of hearing on said Petition was delivered to the attorney for the appellant on May 24, 1972. Her attorney immediately notified the Court that he had withdrawn from the case and on that date wrote appellant advising her of that fact and of the scheduled hearing. Formal withdrawal of appearance was never made.

[224 Pa.Super. 532] On June 1, 1972, the West Virginia court held a hearing on the Complaint and Petition. No one appeared in court on behalf of appellant. Nevertheless, after hearing testimony from the appellee, the Court entered an Order awarding temporary custody of the minor children to the appellee, and awarding him the family automobile, household effects and other personalty.

On July 10, 1972, a Petition for Writ of Habeas Corpus for Custody was presented to the Court of Common Pleas of Allegheny County, Pennsylvania, Family Division. On that date, a Rule was issued upon Lois J. McKee, Esquire, attorney for appellant, to show cause why the order of the West Virginia court should not be enforced. Appellant alleges that she was never personally served with said Petition and Rule, and that counsel had not at that time entered an appearance on behalf of appellant. Nevertheless, on July 17, 1972, appellant appeared for a hearing before Judge Brosky, who refused to give appellant a continuance to answer appellee's petition.

By an Order dated July 17, 1972, the lower court ordered appellant to deliver custody of her minor children, possession of certain personalty and a motor vehicle to the appellee. The Allegheny County court ruled that the decree issued by the West Virginia court was entitled to full faith and credit, and determined that the case could not be heard on its merits. An appeal to this Court followed.

Generally, a decree of a court of competent jurisdiction awarding the custody of a child, domiciled in that state, is conclusive of the status of the child. By virtue of the Full Faith and Credit Clause, it will be enforced in other states. This majority view is rejected by the courts of Pennsylvania. The leading case is Commonwealth ex rel. Daven v. Daven, 298 Pa. 416, 148 A. 524 [224 Pa.Super. 533] (1930). There a Pennsylvania resident moved with her husband to North Carolina. After a separation, and at the instance of the father, the Juvenile Court of Buncombe County, N.C. placed the children in a boarding house for their care. A short time later, ignoring the ruling of the Court, the mother took the two children and brought them to Philadelphia where they...