Commonwealth ex rel. Gregory v. Gregory

146 A.2d 624, 188 Pa. Super. 350, 1958 Pa. Super. LEXIS 609
CourtSuperior Court of Pennsylvania
DecidedDecember 9, 1958
DocketAppeal, No. 317
StatusPublished
Cited by16 cases

This text of 146 A.2d 624 (Commonwealth ex rel. Gregory v. Gregory) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Gregory v. Gregory, 146 A.2d 624, 188 Pa. Super. 350, 1958 Pa. Super. LEXIS 609 (Pa. Ct. App. 1958).

Opinion

Opinion by

Ervin, J.,

This is an appeal from an order of the court below in banc modifying an order of the hearing judge and awarding custody of two minor children to the appellee. Doris Baker Gregory, the appellee, and Kendall D. Gregory, appellant, were married on April 8, 1943. Two children were born to the union: Grier Joseph on May 22, 1944 and Thomas Decatur on October 1, 1946. On March 18, 1953, when the couple were living with their children in Gulfport, Mississippi, the appellee obtained an absolute divorce in which it was provided that she was to have custody of the boys for nine months of the year and the father was to have custody for the remaining three months of the year. On October 1, 1954 the Mississippi court modified the decree by awarding the custody of the children to the father for nine months and to the mother for three months [353]*353of each year. On May 23, 1955 the Mississippi court again modified its decree and awarded custody equally between the parents, giving the mother custody from June 1 to December 1 of each year and custody to the father from December 1 to June 1 of each year “until further order of this Court” (Emphasis added) This decree also provided that the children were to be enrolled by the mother in the Bayou View School in Gulfport, Mississippi. In November 1956 the mother filed a petition in the Mississippi court seeking a further modification of the custody arrangement. In July 1957 the mother brought the boys to Pennsylvania, taking up residence in Springfield Township, Montgomery County, Pennsylvania, and enrolling the children in the schools of that township. On October 1, 1957 the mother filed a petition in the Montgomery County court seeking custody of the boys for nine months of the year in order that the boys might spend a full school year in one school without interruption. On December 13, 1957 the father filed a petition in the Montgomery County court seeking a decree to compel the mother to deliver the children into the custody of the father. Both of these matters came on to be heard before President Judge Harold G. Knight who, on December 2, 1957, dismissed the petition of the mother for custody and on January 2, 1958 remanded the custody to the mother and ordered that they were to be delivered to the father on February 1, 1958. The order also provided: “The father to give bond in the sum of $2000. conditioned on his returning the infant relators to their mother on June 1, 1958 in accordance with the decree of the Mississippi court dated November 11, 1957.” The Mississippi court on November 11, 1957 had further modified its order and gave custody of the boys to the father from November 11, 1957 to June 1, 1958 and for a period from September 1 to [354]*354May 31 in each and every year until further order of the court. The mother was awarded custody from June 1 to August 31 of each year until further order of the court. On January 10, 1958, four days after the expiration of President Judge Knight's term of office, the mother filed exceptions to both decrees theretofore entered by President Judge Knight, which exceptions were subsequently heard before the court in banc of Montgomery County, of which President Judge Knight was no longer a member. On April 9, 1958, in an opinion by Judge David E. Grosi-isns for the court in banc, the custody of the two boys was awarded to the mother from the date of the decree until June 20, 1958 and for a period beginning September 1, 1958 and continuing through June 20, 1959 and for a similar period in each and every year thereafter except for the Christmas holidays, until further order of the court. The court also awarded custody of the children to the father for a period from June 20, 1958 to August 31,1958 and for a similar period in each and every year thereafter until further order of the court. The father was also given custody from December 23, 1958 to December 31, 1958 inclusive and for a similar period in each and every year thereafter. The father appealed.

The appellant contends that it was error for the court in banc to fail to give full faith and credit to the decree of the Mississippi court, where the hearing judge found that there was no change in circumstances since the entry of its prior decree. Our court has recently considered this question in Com. ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 641, 98 A. 2d 437, where we quoted with approval the language of our Supreme Court, as follows: “ ‘In our opinion, the true view of the question is that where the custody of a child has been passed upon by the proper court in one [355]*355jurisdiction who has heard the case and made an adjudication incorporating therein certain findings of facts, the facts so found should as to the parties participating therein be treated as established and not open to question in another jurisdiction, especially where the parties so appearing neglected to avail themselves of the statutory right of appeal. Upon those facts and any others that may be presented, the court, where the matter is again brought up, must determine the ultimate question of the best interests of the child. Whether the same conclusion should be reached, even on the same facts, depends on the judgment of the court re-hearing the case’.” See also Com. ex rel. Maines v. McCandless, 175 Pa. Superior Ct. 157, 161, 103 A. 2d 480. It should also be noted that while the Mississippi court purported to act upon the petition of the mother, filed in November 1956, seeking a modification of the former order, it did not do so until November 11, 1957. No hearing had ever been held upon her petition to modify when she and the boys were present. At the time of the Mississippi court’s action neither the mother nor the boys were in the State of Mississippi. It appears that the Mississippi court’s action was taken upon the request of the father in the absence of the mother and the children and only after the proceedings had been instituted by the mother in the Pennsylvania court. The accepted rule is that jurisdiction follows either the domicile of the child or the residence of the child: Com. ex rel. Scholtes v. Scholtes, 187 Pa. 22, 25, 142 A. 2d 345. The residence of the children was in Pennsylvania at the time of the institution of the proceedings for custody in Montgomery County. The parents had been divorced and by decree of the Mississippi court the custody of the children had been divided between the divorced parents.

[356]*356The appellant also argues that the court in banc erroneously modified the order of the hearing judge. While it is true that the findings of the hearing judge on questions of fact, particularly where the credibility of witnesses is concerned, are entitled to be carefully considered, this rule does not apply in favor of deductions or inferences which are made by the trial judge from the facts which he has found. The conclusions of the trial judge, being no more than his reasoning from the facts, are always reviewable, either by the court in banc or by an appellate court: Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 151 A. 15; Blue Ridge Metal Mfg. Co. v. Northern Pa. Power Co., 327 Pa. 424, 432, 194 A. 559; Andrikanics v. Andrikanics, 371 Pa. 222, 226, 89 A. 2d 792; Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A. 2d 350; Cameron Estate, 388 Pa. 25, 28, 130 A. 2d 173. Certainly the wife, aggrieved by the order of the hearing judge, had the right to file exceptions thereto and have the matter passed upon by the court in banc: Sigel Appeal, 381 Pa. 603, 606, 114 A. 2d 117; Kensington Club Liquor License, 164 Pa. Superior Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth Ex Rel. Zaubi v. Zaubi
423 A.2d 333 (Supreme Court of Pennsylvania, 1980)
Sorbello v. Sorbello
416 A.2d 529 (Superior Court of Pennsylvania, 1979)
In re Hill
375 A.2d 165 (Superior Court of Pennsylvania, 1977)
Lacy v. Lacy
553 P.2d 928 (Alaska Supreme Court, 1976)
Commonwealth ex rel. Sissel v. Sciulli
268 A.2d 165 (Superior Court of Pennsylvania, 1970)
Commonwealth Ex Rel. Gifford v. Miller
248 A.2d 63 (Superior Court of Pennsylvania, 1968)
Commonwealth ex rel. Thomas v. Gillard
198 A.2d 377 (Superior Court of Pennsylvania, 1964)
Wells v. Wells
186 A.2d 844 (Superior Court of Pennsylvania, 1962)
Irizarry Appeal
169 A.2d 307 (Superior Court of Pennsylvania, 1961)
Commonwealth ex rel. McKee v. Reitz
163 A.2d 908 (Superior Court of Pennsylvania, 1960)
Chuplis v. Steve Shalamanda Coal Co.
159 A.2d 520 (Superior Court of Pennsylvania, 1960)
Lockhart v. Longmore
151 A.2d 829 (Superior Court of Pennsylvania, 1959)
LOCKHART Et Ux. v. LONGMORE
189 Pa. Super. 455 (Superior Court of Pennsylvania, 1959)
Commonwealth v. Levitz
150 A.2d 581 (Superior Court of Pennsylvania, 1959)

Cite This Page — Counsel Stack

Bluebook (online)
146 A.2d 624, 188 Pa. Super. 350, 1958 Pa. Super. LEXIS 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-gregory-v-gregory-pasuperct-1958.