Commonwealth ex rel. Blank v. Rutledge ( 1975 )

Opinion

per Curiam,

The order of the court below is vacated and the action is dismissed.

Opinion by

Price, J.,

In Support op Per Curiam Order:

The instant appeal involves the determination of custody of a minor child, Scott. The record indicates that Scott’s parents separated on November 15, 1967. Several days later, after obtaining an Alabama divorce, the mother married her present husband, John R. Rutledge. A problem, the nature of which is unclear, seems to have developed concerning the validity of the Alabama divorce and as a result, Scott’s mother secured a second divorce from the New Jersey courts some four years after the first divorce.

Appellee, Scott’s father, a resident of Pennsylvania, was personally served with a copy of the New Jersey divorce complaint, but did not appear at the proceeding. On November 30, 1971, the New Jersey court granted a divorce to the mother, and awarded custody of Scott to her, with “reasonable visitation rights” granted to ap-pellee.

Mr. Blank has visited Scott every other weekend since the divorce by driving the ninety miles from his home to appellant’s home in New Jersey on Friday, getting the child, returning to Pennsylvania where they spend the weekend, then driving Scott back to his home.

It was prior to one of these weekend visits that Mr. Blank filed his Habeas Corpus petition in Pennsylvania, seeking to obtain custody of Scott. The court below, following a hearing, awarded custody to Mr. Blank. This appeal by Mrs. Rutledge, Scott’s mother, was brought to contest the award on the basis that the lower court had no jurisdiction to maintain the action. We agree. Appellant’s contention, which is supported by the record, follows :

On Friday, July 20, 1973, Mr. Blank filed his petition for Habeas Corpus relief. The petition stated, as a jurisdictional fact, that “[t]he child is presently residing with Petitioner.” In actuality, however, Scott did not enter Pennsylvania until Sunday, July 22, 1973, two days after the petition was filed. In our view, the lower court had no jurisdiction over the case on Friday, July 20, 1973, when the petition was filed, and Scott’s belated “presence” in the Commonwealth on July 22, 1973, did not vest the Court of Common Pleas with jurisdiction ex post facto.

The Restatement (Second) of Conflict of Laws §79 (1971), lists three instances in which a court may exercise jurisdiction to determine custody of the person of a child. The court may hear the case when the child is (a) domiciled in the state, or (b) present in the state, or (c) neither domiciled nor present in the state, if the controversy is between two or more persons subject to the jurisdiction of the state.

It has long been the law of this Commonwealth that the child of divorced parents assumes the residence and domicile of the parent who is awarded custody. Swigart v. Swigart, 193 Pa. Superior Ct. 174, 163 A.2d 716 (1960) ; Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649, 29 A.2d 363 (1942). In the case now before us, the child has been living with his mother in New Jersey, pursuant to a custody order entered in that state, and not contested by his natural father. Under these circumstances, neither (a) nor (c) are relevant to this appeal, for Scott is clearly a resident of and domiciled in New Jersey, as is his mother. Therefore, the Pennsylvania courts have no jurisdiction based on the domicile of the child, nor based on a controversy between two or more persons subject to the Commonwealth’s jurisdiction. The determination of jurisdiction, therefore, depends upon a finding that Scott was present in the Commonwealth at the time the action was commenced. For as this court stated in Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Superior Ct. 286, 288, 50 A.2d 713, 715 (1947): “[t]he jurisdiction of the court attached on [the date] the original writ was issued.”

The Habeas Corpus Act, Act of May 25, 1951, P. L. 415, §1 (12 P.S. §1901) et seq., sets forth the requirements which the courts of common pleas must satisfy in order to entertain a habeas corpus petition. Section 1 of the Act provides:

“Any judge of a court of common pleas within this Commonwealth shall have jurisdiction, at any time, to issue a writ of habeas corpus upon application by, or on behalf of, any person . . . alleged to be unlawfully imprisoned or detained in any penitentiary ... or other place, (a) within the judge’s judicial district. . .” 12 P.S. §1901.

When the person “alleged to be unlawfully . . . detained” is not present “within the judge’s judicial district” at the time the habeas corpus action is instituted, the courts of common pleas do not have jurisdiction. Such an interpretation is in accord with the philosophy expressed by this court in Irizarry Appeal, 195 Pa. Superior Ct. 104, 107, 169 A.2d 307, 308, cert. denied, 368 U. S. 928 (1961):

“ ‘Jurisdiction of a court in a proceeding involving custody is determined by the domicile or residence of the child.’ Com. ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951). ‘The majority rule in the United States is that a decree of a proper court awarding custody of a child is conclusive of the status of the child and therefore will be enforced in other states. The award is conclusive only of the status of the child and the parent at the time; it may be altered for reasons arising subsequent to the decree. The child must, however, be within the jurisdiction of the decree-granting state; otherwise the state is without power to determine its status.’ Freedman, Law of Marriage and Divorce, §793.” [Emphasis added]

In the instant case, the child was not in the Commonwealth and, therefore, not subject to the jurisdiction of our courts until two days after the writ was filed. To find that this belated entrance into Pennsylvania “cured” the defective jurisdiction when the petition was filed would be to encourage the practice of child snatching¹ and forum shopping, and to misstate the jurisdictional problem. We cannot so hold.

Russell J. Weintraub has commented with disfavor upon practices which lead to repeated litigation of custody awards. In his Commentary on the Conflict of Laws, 197-98 (1971), Professor Weintraub noted:

“The ease with which sister-state custody decrees can be modified and the multiple bases for custody jurisdiction have resulted in the sad spectacle of child snatching, forum shopping and repeated litigation of custody awards. A parent dissatisfied with the first custody award, or perhaps simply wishing to use the child as a weapon to inflict punishment on the other parent, forcibly removes the child to another state. Or the disappointed parent may refuse to return the child from an authorized visit outside the custody forum. The other parent locates the child and petitions for a writ of habeas corpus for the child’s return. Thus the scene is set for relitigating the custody issue. If this retrial produces a change in custody, another round of grabbing, running and litigating is invited. This pattern emerges again and again in the cases cited in this section on custody. Whatever chance the child had for stability and happiness is lost amidst the din of the warring parents.”

This court has recognized that the Commonwealth has the “right to oversee the interests of children within this Commonwealth,” Friedman v. Friedman, 224 Pa. Superior Ct. 530, 535, 307 A.2d 292, 295 (1973), based upon the duty of a state to protect the best interests and welfare of its children. The Commonwealth, however, has no interest in protecting children who are neither residents nor domiciliaries, and who are not present within its boundaries.

The jurisdictional problem presented by this case is an unusual one. It is clear that the court below was competent to hear and determine controversies of the general class to which this case belongs, i.e., habeas corpus petitions for custody. What was lacking in the case now before us was a proper invocation of the court’s jurisdiction.

The Pennsylvania Supreme Court recently dealt with a similar issue of the premature invocation of jurisdiction. The case, Commonwealth v. Ryan, 459 Pa. 148, 327 A.2d 351 (1974), involved the filing of an application for injunctive relief of a threatened strike.

The Ryan court determined that the jurisdictional section of the statute in question² prohibited the lower court from assuming jurisdiction until a strike was in progress. There was no actual strike, only the threat of one, on the date the action was filed. Thus, the lower court had no jurisdiction to hear the case — even though the strike had begun by the time the first hearing was held. The court said:

“. . . The defect of premature filing could not be cured by the subsequent occurrence of the threatened strike. As we said in Brenner v. Sukenik, 410 Pa. 324, 328, 189 A.2d 246, 248 (1963): ‘[t]he question of equity’s jurisdiction must be determined on the facts and circumstances existing upon the date the action is instituted: Lafean v. American Caramel Co., 271 Pa. 276, 114 A. 622 (1921)’. ... But it was not merely the power to grant an injunction that was absent [on the date the suit was filed]; it was the right of the School Board to invoke jurisdiction at all. No right of action existed until the strike was in being. Where matters of jurisdiction are concerned, the courts must enforce the letter of the law.” Commonwealth v. Ryan, 459 Pa. at 157, 327 A.2d at 355. [Emphasis added]

The principles of the Ryan case are equally as applicable to habeas corpus petitions as to complaints in equity. In the instant case, as in Commonwealth v. Ryan, supra, petitioner had no right of action until the child was actually within the Commonwealth, and the lower court could not assume jurisdiction over the child until he entered the Commonwealth. “A court which does not have jurisdiction of the child, does not have jurisdiction of the subject matter to determine the right of custody as between the parties.” Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 559, 80 A.2d 829, 832 (1951). See also Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930) ; Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649, 29 A.2d 363 (1942).

This court reiterated the opinion of the supreme court in Commonwealth ex rel. Graham v. Graham, supra, in Reilly v. Reilly, 219 Pa. Superior Ct. 85, 280 A.2d 639 (1971). Therein, we were asked to determine the jurisdiction of the Blair County Court of Common Pleas over a child-resident of Pennsylvania who was not physically restrained in, and did not reside in, Blair County at the time the writ of habeas corpus was filed. The court unanimously held that Blair County had no power to entertain the petition as it was not the proper venue for the action. The court stated:

“Except where the court has committed a person to detention outside its judicial district, an exception not here applicable, the statutes governing writs of habeas corpus make it clear that before a court in a judicial district has the power to determine a writ, the person must be restrained or confined in that district. See Commonwealth ex rel. Mees v. Mathieu, 107 Pa. Superior Ct. 261, 163 A. 109 (1932).” 219 Pa. Superior Ct. at 89, 280 A.2d at 641.

The instant situation is an extension of Reilly v. Reilly, supra. There the courts of one county within our state had no jurisdiction over a child who was not present in the county at the time the action was instituted, but who was present in the Commonwealth. In this case, the child was not even within our borders at the time the writ was filed. Under these circumstances, we cannot find that the lower court had jurisdiction to determine the issue.

The order of the lower court is vacated and the action is dismissed.

Watkins, P.J., and Jacobs, J., join in this opinion.

Hoffman, J., did not participate in the consideration or decision of this case.

2 . Act of July 23, 1970, P. L. 563, No. 195, §1003 (43 P. S. §1101. 1003) (Supp. 1974).