Appeal, No. 209 | Pa. Super. Ct. | Jan 20, 1953
Opinion by
The parties, following their marriage in December 1945, lived in Beaver Falls where their daughter, the subject of this proceeding, ivas born on December 3, 1946. On June 16, 1948, the relatrix separated from her husband in Washington County and, taking the child with her, went to live with her parents in Hyndman, Bedford County. On August 9,1948, the respondent, without the consent of his wife, took the child from the home in Hyndman and brought it to Washington, Pennsylvania. Thereupon the relatrix sought to regain possession of the child in a habeas corpus proceed
By automobile travel, Hyndman in Bedford County is about 150 miles from Beaver Falls. On one occasion in December 1949 when respondent drove to Hyndman to get the child in accordance with the terms of the above order of October 7, 1948, the relatrix refused to deliver the child to him. She also refused him temporary custody of the child for the months of July and August 1950 in violation of the order. On these grounds he on May 29, 1952, petitioned the court for a revocation of the order of October 7, 1948 and for an award of the custody of his child to him. The relatrix, although served with notice of respondent’s petition, did not file an answer thereto nor appear at the hearing on the rule granted on the petition. The court, on June 30,1952, after hearing, found that relatrix “almost continuously” had violated the terms of its previous orders, and accordingly revoked the order of October 7, 1948, and awarded custody of the child to her father, the re
In September 1952, the relatrix petitioned the lower court for a revocation of the order of June 30, 1952, on the ground that the court then did not have jurisdiction of the parties nor of the child. In the alternative, in the event of an adverse decision as to jurisdiction, relatrix sought a modification of the order on the merits to determine what is “for the best interests and permanent welfare” of the child. She, in her petition, alleged that she had changed her domicile to the State of Maryland and while living there was divorced from the respondent, Gerald B. Freed, in a proceeding brought by her, by decree of the Circuit Court of Alleghany County, Maryland, dated January 5, 1952, and in the divorce decree she was granted permanent custody of the child. By order on September 22, 1952, the lower court refused the prayer of relatrix’s petition for revocation of the order. The present appeal by the relatrix, the mother of the child, is from the order of June 30, 1952, on jurisdictional grounds.
From the above facts, appearing in the record, it is clear that the lower court was right in stating on September 22, 1952, that it no longer had jurisdiction of the parties nor of the child in this proceeding but it erred in failing to set aside its order of June 30, 1952.
In the habeas corpus proceeding in Beaver County the terms of the original order of October 7, 1948 will not control. Changed circumstances since that date will reopen the question of custody both on the law and the merits. The validity of the Maryland divorce will be in issue and if valid, a second question will be the extraterritorial effect, under all of the circumstances, of an award of custody of the child to her mother by a court of that State. Only if the Maryland divorce was valid as to the respondent and the Maryland Court had jurisdiction of the minor child will the principles of §§32, 117, 145 and 146 of the Restatement, Conflict of Laws, have application. Cf. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286" court="Pa. Super. Ct." date_filed="1946-11-21" href="https://app.midpage.ai/document/commonwealth-ex-rel-teitelbaum-v-teitelbaum-3860567?utm_source=webapp" opinion_id="3860567">160 Pa. Superior Ct. 286,
The order of June 30, 1952 is vacated and set aside.
The relatrix has brought a habeas corpus proceeding in Beaver County for the custody of the child which is pending but is in abeyance awaiting the outcome of this appeal.