167 Pa. Super. 470 | Pa. Super. Ct. | 1950
Opinion by
Anna May Graham, the relatrix, having been awarded the exclusive custody of Andrew Roger Graham, the five-year-old son of relatrix and David B. Graham, by the Court of Common Pleas of Cuyahoga County, Ohio, instituted this habeas corpus proceeding in Clear-field County, Pennsylvania, seeking enforcement of the Ohio decree.
The Ohio court, having “jurisdiction of both said parties,” on April 8, 1949, having found that David B. Graham had “been guilty of gross neglect of duty towards the Plaintiff [relatrix herein],” entered a decree divorcing the parties, and at the same time ordered “that the Plaintiff be . . . awarded the temporary custody of the said minor child,” but that the child should continue to be domiciled with the paternal “grandfather.” The use of the word “grandfather” was, no. doubt, an inadvertence on the part of the court, for the child was at the time domiciled not with his paternal grandfather, but with his paternal great-grandfather, a man 78 years of age; and the present proceeding is not a proceeding between the mother and father of the child, nor between the mother and the paternal grandfather, but between the mother and the paternal great-grandfather.
Following the entry of the aforesaid decree, the great-grandfather returned from the domicile of his grandson in Cleveland, Ohio, to his own domicile in Shawville, Clearfield County, Pennsylvania, taking the child with him. On June il they were joined .by the father of the
Although the original order awarding temporary custody to the mother provided that she should have reasonable and liberal rights of visitation “including the right to have said child with her in her. own home for reasonable periods of time,” it became necessary for her to secure a writ of habeas ..corpus to enforce such right when she went to visit the child in July of 1949. After that experience, upon her return to Cleveland she petitioned the court for a modification of the original order. The petition was granted and on October 26, 1949, the “Court being fully advised in the premises, . . . [found] that the defendant [David B. Graham] . . . [had] been duly and legally served with notice herein according to law,” and entered an order enjoining him “from interfering in any manner with either said child or with said plaintiff in the custody thereof.” The court further found that “the best interests and welfare of said child will be served by said change of custody” and “therefore, ordered, adjudged and decreed that the custody ... of said child . . . be . . . awarded exclusively to the plaintiff,” and that “the said child is to be domiciled in the home of Dan Gorby of Tucson [Áriz.], until further order” of the court. The order for change of domicile from Pennsylvania to Arizona was not made until the court “after careful investigation” found “said home to be fit and proper.”
. In the course of its opinion the learned court said that it did “not agree” that full faith and credit should be given “the decree of a sister state” involving the. custody of a child as stated “[i]n several opinions, of the Superior Court.”
The learned president judge of the court below is, of course, entitled to his opinion in respect of the decisions; of this Court, but the Supreme Court in Townsend Trust, 349 Pa. 162, 36 A. 2d 438, affirmed a decree of the Court of Common Pleas of Delaware County on the opinion of Judge Ervin, wherein it was stated (page 168) that “a lower court has no right to ignore the latest decision of the Superior Court of this Commonwealth on an issue which has been squarely decided. Until that decision should be over-ruled by the Superior Court itself or over-ruled by the Supreme Court, it is still the law of this Commonwealth, ...”
Without any claim to, or pride of, authorship, we feel that in Commonwealth ex rel. Di Pasquale v. Di Pasquale, 162 Pa. Superior Ct. 29 (allocatur refused ib. xxv), 56 A. 2d 265, our latest decision touching on the question, we correctly'stated the. law, as follows
The court below correctly quoted the law as thus stated but erred in finding that the change in domicile was “a change in conditions” that rendered the award of custody by the Ohio court inconclusive. We agree that it would have that effect if it had been “a change in conditions” arising subsequent to the award; but it was not. The award to the mother of exclusive custody was made with full knowledge by the court that the child was to be taken to Arizona.
In Restatement, Conflict of Laws, §147, titled “Enforcement of Custody Created by Foreign Law,” it is stated that: “Except as stated in §148 [where there is proof that the custodian of the child is unfit to have control of the child], when the custody of a child has been awarded by the proper court to either parent, the decree will be enforced in other states.” In the Pennsylvania Annotations to §147, it is stated that:
“The Pennsylvania courts apparently consider all orders fixing the custody of children as temporary in nature, without regard to whether such an order was granted by a court of the state of the domicil of the child or by the court of another state having personal jurisdiction over the child. The decree of a foreign court fixing custody renders the facts found in the foreign proceeding res judicata but apparently the ultimate decision, even on the same facts, is always open to question. Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524 (1930). See In re Rosenthal, 103 Pa. Super. Ct. 27, 32,*475 33, 157 A. 342 (1931). Cf. Commonwealth ex rel. Thompson v. Yarnell, 313 Pa. 244, 169 A. 370 (1933).
“The holding in Commonwealth ex rel. v. Daven and the dicta in Re Rosenthal seem consistent with the rule of this section as qualified by §148.
“In support of the rule of this section see Roberts v. Roberts, 80 Pitts. L. J. 69, 71 (1930) (semble).”
We feel that this is a case where full faith and credit should be given to the decree of the Ohio court; but even if it were not, then, in the language of the court below, “independent of . . . [the] decree of the Ohio court,” we would still hold that the interests and welfare of the child will be best served by awarding custody to the mother. In Commonwealth ex rel. Gates v. Gates, 161 Pa. Superior Ct. 423, 55 A. 2d 562, we said, in an opinion by Hirt, J. (pages 424-425) : “In general, the needs of a child of tender years are best served by its mother and unless compelling reasons appear to the contrary, such child should be committed to the care and custody of its mother.” We held that: “The order in . . . [that] case [awarding custody to the mother] . . . [was] justified on that principle alone.” Applying the same reasoning to the facts in this case, we have no hesitancy in saying that an award of custody to the mother would have been justified on the same principle.
We simply cannot follow the reasoning of the learned president judge of the court below when he says:' “The principal objection to the mother having custody of her child, is that she has not occupied the normal position Of mother and child for the past four and one-half years. While she may have had to work during some of that time, we feel that this is not the normal relationship.” We agree that it is not; but the mother was forced into it by the “gross neglect” of her husband toward her and his refusal to support the child until he was ordered to do so by the Juvenile Court of Cuyahoga County, Ohio.
The order is reversed and the record is remitted with directions to enter an order awarding the custody of the child, Andrew Roger Graham, to relatrix, with the right to take the child with her to the State of Arizona.