Commonwealth Ex Rel. Graham v. Graham

80 A.2d 829, 367 Pa. 553, 1951 Pa. LEXIS 421

• Court: Supreme Court of Pennsylvania
• Decided: May 23, 1951
• Docket: Appeal, 95
• Status: Published

Opinions

Opinion by

Mr. Justice Chidsey,

Anna May Graham, appellee, on November 2, 1949, instituted the instant habeas corpus proceedings in Clearfield County, Pennsylvania, against David Graham, father, and James A. Cowher, paternal great-grandfather, to secure custody of her son, Andrew Graham, age five years. She relied upon a decree of an Ohio court awarding custody of the child to her. The court below, on November 16, 1949, entered an order refusing the prayer of the petition, thereby permitting the child to remain with the father and pater-, nal great-grandfather. The Superior Court reversed the lower court. We allowed this appeal by the father and great-grandfather.

David and Anna Graham, after their marriage. on June 30, 1944, moved from Pennsylvania to Cleveland, Ohio, where the child, Andrew, was born on December 26, 1944. The parents separated , in 1945. Anna was thereafter employed as a practical nurse. Because of that employment and her defective vision, the child was cared for from time to time and largely reared by his great-grandfather, with whom he lived while in Pennsylvania. Divorce proceedings were instituted in Ohio by the mother. A hearing was had on April 5, 1949, and on April 8, 1949, a decree was entered divorcing the parents and providing with respect to the child: “It is further ordered that the Plaintiff be and is hereby awarded the temporary custody of the said minor child but due to the present physical condition of the plaintiff, it is further ordered that the said child continue to be domiciled with the paternal grandfather.” (Inadvertently the order read “grandfather” rather than “great-grandfather”.) The child had returned to Clearfield County, Pennsylvania, with James' A... Cowher, the .great-grandfather, on April 1, 1949, four days before the hearing: and seven days prior to the decree.¹ The Ohio court further ordered that the arrangement as regards domicile should continue for a year and a half, after which time the issue of custody and domicile might be relitigated. This arrangement, as the order indicates, was made because of the physical condition of the mother, namely, her defective vision, which, by her own admission, was and remains only ten per centum of normal.

The record with respect to the Pennsylvania proceedings is not clear. It appears, however, but not by the docket entries, that in July, 1949, the mother first instituted habeas corpus proceedings in Clearfield County, Pennsylvania, against David Graham and James A. Cowher to determine custody of the child,² that the court ordered a continuance, permitting the mother to take the child for two weeks upon posting a bond assuring return of the child to his great-grandfather at the end of that period, and conditioned that he should not be removed from Pennsylvania; and that notwithstanding this condition of the order, Anna Graham took the child to Cleveland, Ohio. She did return in due course and the court leniently cancelled the bond.

The docket entries reveal that a petition for habeas corpus was filed November 2, 1949, and a rule issued pursuant thereto. The court below and the attorneys before this Court, have treated the hearing on November 4, 1949, as a second hearing on the original petition. All parties were present at this hearing in November. Anna Graham offered in evidence a copy of the original decree of divorce and a copy of a subsequent decree of an Ohio court dated October 26,1949. The latter decree awarded exclusive custody of the child to the mother and ordered the child to be domiciled with the mother’s sister and her blind husband in Arizona. The child, the husband, and the great-grandfather were not present at the hearing in Ohio which resulted in the modifying order, although David Graham received a letter from his wife’s attorneys advising him of the pendency of the action. David Graham’s attorney appeared in the Ohio court and ashed for a continuance in order to prepare the case, which request was refused by the court.

Appellants introduced evidence in the instant proceeding with respect to the fitness of each parent and the great-grandfather and the environment presently surrounding the child. The hearing judge concluded that the best interests and welfare of the child would be served by his continuing to live with his father and great-grandfather, and entered an order denying the prayer of the mother’s petition. The Superior Court was of opinion, President Judge Rhodes dissenting, that (1) full faith and credit must be given to the Ohio decree of October 26, 1949, and (2) irrespective of full faith and credit, the best interests of the child required an award of custody to the mother.

Appellants contend that the full faith and credit clause of Article IV, Section 1 of the Constitution of the United States is inapplicable as regards the orders of the Ohio court for the reason that the child, when the respective hearings were held and decrees were entered, was not subject to the jurisdiction of the foreign court, and that the Superior Court gave undue weight to minor facts, with the ■ result that its order is not conducive to nor does it promote the best interests and welfare of thé- child.

Consideration of the issues presented and review of the entire record compel the conclusion that the order of the Superior Court be reversed.

Neither the authentication of the original Ohio decree of April 8, 1949, nor of the modifying decree of October 26, 1949, conformed with the laws of Congress with respect to' judgments and decrees of another state in that both lacked the required certificate .of .the hearing judge that the attestation of the clerk of the court was in due form (Act of June 25, 1948, c. 646, 62 Stat. 947, 28 TT. S. C. A. 1788). It is not clear, however, that objection by appellants’ counsel to admission into evidence of these decrees was based on their irregularity in this respect, and to effect a complete disposition of this case we will consider them as properly in evidence.

If it be assumed that the'Ohio court had jurisdiction of the subject matter (status of the' child) to enter the order of April 8, 1949, and that full faith and credit must be extended thereto, it must be recognized that the order definitely establishes the domicile and residence of the child in Pennsylvania. The Ohio court not only permitted, but directed that the domicile as well as. residence of the child, the. controlling factors as to jurisdiction, be in.Pennsylvania. While the child is domiciled and .resident in Pennsylvania, the Ohio court is without jurisdiction of the person and subject matter. The attempted reservation of jurisdiction by the court and the provision for reconsideration at .the énd of. eighteen -. months could .'not,, therefore, be enforced by the. Ohio .court'. • It surrendered any. jurisdicT tion it may have had, .and its.: later decree of Octóbér 26, 1949 was nugatory. .To .conclude otherwise would permit, reservation of jurisdiction and control of .the actual custody:of the child for:any stated time, indeed throughout, its: minority,, regardless, of its whereabouts as- to::residence :aiid.-domidle.. Certainly, ..such stated .retention of jurisdiction cannot have.'éxtratérritorial.efv feet to preclude courts of a sister state, being possessed of domicile and residence, from exercising jurisdiction.

Jurisdiction of a court in a proceeding involving custody is determined by tbe domicile or residence of tbe child. Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524; Commonwealth ex rel. Sage v. Sage, 160 Pa. 399, 28 A. 863; Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649 (1942), 29 A. 2d 363; In re: Custody of Minor Children of Dunbar A. Rosenthal, 103 Pa. Superior Ct. 27, 157 A. 342; Commonwealth ex rel. v. Eich, 73 Pa. Superior Ct. 268; State ex rel. Larson v. Larson, 190 Minn. 489, 252 N. W. 329 (1934); Restatement, Conflict of Laws, Sections 117, 145, 146. 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. v. Daven, supra; Commonwealth ex rel. Camp v. Camp, supra;. Gilman v. Morgan, 158 Fla. 605, 29 So. 2d 372, cert. denied, 331 U. S. 796; Dorman v. Friendly, 146 Fla. 732; Lake v. Lake, 63 Wyo. 375, 182 P. 2d 824.

Infants are wards of the court having jurisdiction of. their person. They are'under its protection, care, and control. In awarding the custody of a child, the court must be. guided in its decision by the welfare and best interests of-the child. The Commonwealth is vitally concerned with infants within its boundaries and an interested .party in all;matters; affecting- them.. Commonwealth ex rel. Children’s Aid Society v. Gard, 162 Pa. Superior Ct. 415 (1948)., affirmed 362 Pa. .85, 66 A. 2d 300; Burns v. Shapley, 16 Ala. App. 297, 77 Co. 447; Helton v. Crawley, 41. N. W. 2d 60 (1950); (Iowa) ; People ex rel. Wagner v. Torrance, 95 Colo. 47, 27. P. 2d 1038; McMillin v. McMillin, 114 Colo. 247, 158 P. 2d 444 ; 31 C. J. Infants, 988, Section 6: 43 ; C. J. S. Infants, Section 5,' p. 52: The. interest,.of;the;, statefis: reflected in the criterion adopted by onr courts, that the controlling consideration is the welfare of the child, including physical, intellectual, moral, and spiritual well-being. Commonwealth ex rel. v. Daven, supra; Commonwealth ex rel. Children’s Aid Society v. Gard, supra.

Residence within this Commonwealth is sufficient for exercise of jurisdiction by our courts: Commonwealth ex rel. v. Daven, supra; Commonwealth ex rel. Sage v. Sage, supra; Commonwealth ex rel. Camp v. Camp, supra; Commonwealth ex rel. v. Eich, supra; In re: Custody of Minor Children of Dunbar A. Rosenthal, supra. When the father returned to Pennsylvania on June 11, 1949, more than four months before the Ohio decree of October 26, 1949, and made his home with the great-grandfather and child in this State, whatever may have been the status of the child, it is clear that residence ripened into domicile.

Examination of the instant record with respect to the jurisdiction of the Ohio courts reveals fundamental factors which do not require courts of Pennsylvania to recognize the orders in question as presently binding upon them. The child left the State of Ohio on April 1, 1949, to resume residence in Pennsylvania with his great-grandfather. The divorce proceedings which resulted in the decree purporting to establish the child's domicile in Pennsylvania were heard on April 5, 1949. The minor child was not then within or a resident of the State of Ohio, and any decree of the court could be effective only as regards the parents themselves. Commonwealth ex rel. Camp v. Camp, supra; Commonwealth ex rel. Josephine Lembeck v. Lembeck, 83 Pa. Superior Ct. 305; Gilman v. Morgan, supra; Reynolds v. Stockton, 140 U. S. 254 (1891) ; Boor v. Boor, 43 N. W. 2d 155 (Iowa); Dorman v. Friendly, supra; In re Erving, 109 N. J. Eq. 294, 157 A. 161; Lake v. Lake, supra; 50 C. J. S., Judgments, 889, p. 482; Restatement,. Conflict of Laws, Section 429 (c).

Tlie April 8, 1949 decree of the Ohio court awarding custody to the mother is inconsistent in terms. It creates an incongruous gulf between custody on the one hand and domicile and residence on the other. Attempt is made to award custody of the child to the mother in Ohio but there is also a specific direction that the child be domiciled in Pennsylvania. The Ohio court, by ordering that the child “continue to be domiciled with the paternal [great-grandfather]” in Pennsylvania, pronounced a fact which it recognized as already existing, namely, that the child was already a domiciliary and resident of Pennsylvania. The decree of a court of a state cannot operate extraterritorially, nor can a state exercise jurisdiction by judicial process or otherwise over persons or property outside its territorial limits. Pennoyer v. Neff, 95 U. S. 714; In re: Custody of Minor Children of Dunbar A. Rosenthal, supra; Commonwealth ex rel. Josephine Lembeck v. Lembeck, supra.

Jurisdictional infirmity is not saved by the full faith and credit clause. See Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Griffin v. Griffin, 327 U. S. 220, 66 S. Ct. 556. At best the earlier Ohio order of April 9th purporting to give custody to the mother in one jurisdiction and to establish the child’s domicile and residence in another is of doubtful efficacy and need not be recognized as conclusive by the courts of Pennsylvania. See the opinion of the court and the concurring opinions in New York ex rel. Halvey v. Halvey, 330 U. S. 610, 67 S. Ct. 903. The full faith and credit clause will not apply where the jurisdiction of the sister state is doubtful. In New York ex rel. Halvey v. Halvey, supra, Mr. Justice Frankfurter in his concurring opinion, at p. 618 said: “In determining whether the New York judgment should stand or fall account must be taken of two competing considerations. There is first the presumptive jurisdiction of the court of. a sister State — -here Florida — to .render the judgment for which full faith and credit is asked. The other is the power of a State court — here New Yoi*k— which has actual control of the child to make provision for the child’s welfare. Where, as here, both considerations cannot prevail one must yield. Since the jurisdiction of the Florida court in making the custodial decree is doubtful, New York was justified in exercising its power in the interest of the child. Williams v. North Carolina, 325 U. S. 226, [65 S. Ct. 1092, 89 L. Ed. 1577, 157 A. L. R. 1366.]”

We are of the opinion that the court below had power to dispose of the case without giving binding effect to the Ohio decrees. Thus concluding, the court below properly entered upon a full.hearing to determine; from the evidence, a disposition which was for the best interests and welfare of the child, and it becomes our duty under' the law (Act of July 11, 1917, P. L. 817, Section 1,12 PS §1874) to “consider the testimony and make such order upon the merits of the case, either in affirmance, reversal, or modification of the order appealed from, as to right and justice shall belong.” See Commonwealth ex rel. Piper v. Edberg, 346 Pa. 512, 517, 31 A. 2d 84.

It appears that the Superior Court gave undue weight and importance to some aspects of rural life. We believe it was unduly impressed by the lack of modern bathroom facilities in the home of the great-grandfather, and by the thought that the care of the child was left principally to the 78 year old great-grandfather. Child welfare representatives, neighbors of James A. Cowher, the great-grandfather, and the minister of the church in Shawville, Pennsylvania, all testified concerning the neat condition of the great-grandfather’s home, the favorable environment, and his good reputation and standing in the community. While the fitness of the great-grandfather was stressed, it is clear that .the child’s relationship with its father is normal. The father takes part in the care of the child, lives in the same home, and is employed and able to maintain the home. The father’s mother who lives nearby does the child’s laundry, often helps to prepare his meals, and sees him frequently. The child has a relatively .comfortable and clean home. There is ample yard space to play, and abundant playthings are provided. He receives spiritual guidance from his great-grandfather and attends Sunday school regularly. All of this was established to the satisfaction of the Clear-field County court which, upon consideration of all the facts, ordered the child to remain with its father and great-grandfather. '

The order of the Ohio court attempted to award exclusive Custody of the child to the mother and to constitute the child’s domicile in Arizona with the mother’s sister and her blind husband. The instant record does not contain any evidence which tends to establish the fitness of either the Arizona home or: of the aunt and uncle. The fitness of the mother herself may be questioned in the light of her physical handicap, her use of improper language, and harsh attitude toward the child. There is no compelling reason to assume that the mother would leave her daughter (not the child of appellant David Graham) and other attachments in Ohio and live with her son in Arizona. The only indication is her statement of intention. Her unreliability has been demonstrated by the violation of the Clear-field County court’s order which granted her the child for two weeks, on condition the child be kept within Pennsylvania. Despite the order and the obligation of the performance bond, appellee took the child to Cleveland, Ohio. Cf. Commonwealth ex rel. v. Daven, supra.

We are not unmindful of the presumption that a mother is ordinarily better qualified to rear a child of tender years, but we are satisfied, under the circumstances presented by this case, that the best interests and welfare of the child will be served by his remaining in Pennsylvania with his father and great-grandfather in familiar surroundings and with familiar persons for whom it is apparent he has developed an attachment, rather than to permit him to be transported to Arizona to live with strangers in an unfamiliar environment.

The order of the Superior Court is reversed.

1 It is mistakenly stated in the opinion of the Superior Court that “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.” This statement is not in accord with the finding of the court below, which finding is amply supported by the- evidence.

2 It is indicated in the opinion of the Superior Court that this earlier (July) proceeding in Clearfield County was instituted merely to enable the mother to enforce the right of visitation of the child, granted by the Ohio decree of April 8, 1949. This apparently is based on a statement made by her counsel at the second hearing in Clearfield County on November 4, 1949. However, it appears from the court’s questioning of the mother at the second hearing, it was of the impression that the earlier proceeding had been instituted to obtain the custody of the child and have the sister, who had come to Clearfield County, admittedly for such purpose, take the child to Arizona. There was nothing in the record to indicate that the mother sought to visit the child at any time prior to the earlier proceeding in July.