Grun v. Grun

• Decision Date: 02 August 1985
• Citation: 344 Pa.Super. 432,496 A.2d 1183
• Parties: Naomi A. GRUN v. Bennie E. GRUN, Appellant. Bennie E. GRUN, Appellant, v. Naomi A. GRUN. 804 Pittsburgh, 1984, 805 Pittsburgh, 1984
• Court: Pennsylvania Superior Court

Page 1183

496 A.2d 1183

344 Pa.Super. 432

Naomi A. GRUN v.Bennie E. GRUN, Appellant.

Bennie E. GRUN, Appellant, v.Naomi A. GRUN.

804 Pittsburgh, 1984, 805 Pittsburgh, 1984

Superior Court of Pennsylvania.

Argued March 26, 1985.

Filed Aug. 2, 1985.

David J. Flower, Asst. Dist. Atty., Indiana, for appellant.

Joseph B. Policicchio, Somerset, for appellee.

Before DEL SOLE, MONTGOMERY and BUCHER^*, JJ.

DEL SOLE, Judge:

Appellant, father, appeals from a trial court order which denied his petition for enforcement of a Texas custody decree, and which granted Appellee, mother, a hearing in Pennsylvania on the merits of her petition for custody.Although the issues presented on appeal are phrased by the parties in a variety of ways, each deals with the propriety of the trial court's refusal to recognize and enforce a Texas custody decree.

The relevant facts are as follows: Early in 1980, the parties established a relationship which resulted in their cohabitation in the state of South Carolina.A short while later, the parties moved to Appellant's home state, Texas.Appellee established residence in Texas, and in August, she obtained a divorce from a Mr. Hunter.Appellee and Mr. Hunter had a son, and Appellee obtained custody of the child in Texas through a default proceeding.Thereafter, the parties moved to Somerset County, Pennsylvania, with or near Appellee's parents.While residing in Somerset County, Appellant and Appellee traveled to Cumberland, Maryland and on September 9, 1980they were married.The parties continued to live in Somerset County until December when they returned to Texas.The subject of this proceeding, the parties' son, Joshua, was born in Texas on May 27, 1981.Appellant, Appellee and the two children continued to reside in Texas until Appellee returned to Somerset County with her two sons on or about June 20, 1982.

Following the mother's move in June 1982, a series of legal proceedings were instituted.On July 19, 1982, the father filed an action in Texas seeking a divorce and custody of Joshua.Appellee, mother, filed a complaint in divorce including a count for custody on August 9, 1982 in Somerset County.The next day the Texas complaint was served by the sheriff of Somerset County on the mother.On August 12, 1982, the Court of Common Pleas, Somerset County made an ex parte order which confirmed custody of Joshua in the mother pending a custody hearing.Subsequently, on September 21, 1982, a Texas default decree was entered divorcing the parties and awarding primary custody of Joshua to the father.The decree stated that the mother"was served, failed to answer, did not appear, and wholly made default".In October, the mother petitioned the Pennsylvania court to forbid the father from taking physical custody of Joshua.A hearing date was set for December 6, 1982.On that date, the father also filed preliminary objections on jurisdictional grounds.The Somerset County Court issued an order on May 4, 1983, staying all proceedings on the condition that (a) the Texas court, "after fully hearing both parties", make a determination of a more appropriate forum, and (b) if it is determined that Texas is the more appropriate forum, the Texas court should set aside, vacate, or open its custody decree to a full hearing on the merits of the parties respective claims for custody.

Following the father's motion in Aid and Clarification of Judgment, the Texas court found that proper jurisdiction and venue for this matter existed in the state of Texas, and that Texas, not Pennsylvania, would be the proper forum for further actions in the matter.The court also found that its previous custody decree was a valid and final judgment.Further, the Texas court stated that it had no authority to sua sponte order a trial de novo, as requested by the Pennsylvania Court, absent filing of a motion in the nature of a Modification or Bill of Review.The father filed this order with the Pennsylvania Court, along with a petition for enforcement of the order.

Somerset County's most recent action in this matter came on May 29, 1984, when it issued an Opinion and accompanying Order.The order decreed that: (1) since the "Texas court has failed to undertake any judicial inquiry into the custody of the child according to the child's best interest, this Court, having concurrent jurisdiction, is the more appropriate forum for doing so."(2) the "portion of our Order of May 4, 1983, staying all proceedings in this Court concerning custody of the child is vacated, and leave is granted for either party to file a scheduling praecipe for hearing on the merits of the mother's petition for custody sec reg.", and (3)"the father's petition for enforcement of the Texas default custody decree is denied."The father, thereafter, timely filed this appeal.

Before discussing the merits of Appellant's claim, we must first determine whether the Order from which Appellant appeals, is a final order.This Court has jurisdiction only over final orders, and our lack of appellate jurisdiction can and should be raised sua sponte.Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203(1981).

Upon initial examination, it appears that the trial court in points one and two of the Order merely recognized Pennsylvania's subject matter jurisdiction over the matter, and therefore, lifted a stay so that proceedings could continue in Pennsylvania.However, points one and two are actually a subpart of point three.In the third part of the Order, the trial court declined to enforce the Texas custody decree.The court's refusal to recognize and enforce the decree was based on its finding that the Texas court did not correctly dispose of the case.This action by the trial court was final, and precluded the father from any further attempt to gain custody of his son by enforcement of the Texas decree.The court's further statements in points one and two, which permit the case to continue in Pennsylvania, are based upon the court's finding that the Texas decree was unenforceable in Pennsylvania.We conclude that the Order in this case must be read in its entirety and not point by point.When so read, it is clear that the Order is in effect final, and therefore, this appeal has been properly taken.

The facts of this case indicate that the initial petition for custody was filed by the father in Texas.Shortly thereafter, the mother filed a petition for custody in Pennsylvania.The Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. 5341 et seq. provides for the situation in which two states are conducting simultaneous proceedings.42 Pa.C.S.A. § 5347 (a) states:

(a) General rule.--A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because the Commonwealth is a more appropriate forum or for other reasons.

Upon learning that a custody action was proceeding in Texas prior to the mother's filing of her petition for custody, the trial court had a duty to vacate its award of temporary custody and stay the proceedings before it.Although the Somerset Countycourt was unaware of the Texas proceedings when the mother first filed her petition, the mother was served with notice of the Texas action on August 10, 1982, before the Court issued an ex parte temporary custody award.42 Pa.C.S.A. § 5347(c) provides:

(c) Stay; communication with other court.If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 5360(relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state).If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact.If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

See also : Carpenter v. Carpenter, 326 Pa.Super. 570, 474 A.2d 1124(1984).The trial court did comply with the above provision of the Act when it informed the Texas court of the status...