Opinion by
Mr. Chief Justice Bell,
The facts in this case are both unusual and complicated. The maternal grandmother of two minor children, Rudolf Harry Huck, now eleven years old, and his sister, Mary Jane Huck, age nine, took this appeal from the final decree of the Orphans’ Court of Allegheny County dated October Ilf, 1968. In and by that decree, the Orphans’ Court appointed Harry W. Huck, who is the paternal uncle of the minor children (and the appellee in this case), guardian of the persons of the minors, thereby taking the children from their grandmother with whom they had been living in Aus[330] tria almost since birth and gave them to a total stranger to live in a (to them) foreign Country and in a State other than Pennsylvania.
The father of the children, Herbert E. Huck, was born in Pittsburgh on November 23, 1927. He remained a resident of Allegheny County until July 2, 1945, when he enlisted in the United States Army. At the termination of his service, he returned to Pittsburgh and lived in that City as a lodger with a married couple until March 29, 1952, when he re-enlisted in the Army. So far as the record shows, he had never resided in Pittsburgh after that date. On January 31, 1957, he married Maria Anna Fossleitner at Weyer, Austria. Mrs. Huck became a naturalized citizen of the United States on February 12, 1960.
On or about June 29, 1962, Herbert E. Huck, while in the military service and stationed at Nuremberg, Germany, killed his wife with a knife. Thereafter, the United States military authorities took the minor children into custody, contacted Berta Fossleitner, their maternal grandmother, at her home in Austria, and had her come to West Germany where the Army delivered into her custody the Hucks’ two minor children. Ever since that time, the children have resided with their grandmother in Austria. Their father, Herbert E. Huck, is mentally ill and incompetent, and since June 29, 1962, has been in the custody of the United States military authorities. He is presently institutionalized in a United States Government Hospital, St. Elizabeth’s Hospital, in Washington, D. C.
In October of 1962—three months after the murder —the present appellee, who resided then and still resides at 4508 Woodlark Place, Rockville, Maryland, began proceedings in the District Court of Steyr, Austria, to obtain, with the consent of his brother,* custody of [331] these children. Shortly thereafter, Berta Fossleitner, the maternal grandmother of the children, filed an action in the County Court of Weyer, Austria, seeking the permanent custody of the children. That Court entered an interlocutory order granting custody of the children to their grandmother, subject to a determination of the American law of the domicile of the children, with the further provision that if the Court of the domicile of the children failed to assume jurisdiction of the children and of their custody, the Court would enter a permanent order granting custody to the children’s grandmother.
On June 12, 1963, appellee presented and filed a petition in the Orphans’ Court of Allegheny County, Pennsylvania, praying that he be appointed guardian of the persons of the minors, Rudolf Harry Huck and Mary Jane Huck. On the same date, the Orphans’ Court entered an order granting the prayer of appellee’s petition. Neither the children nor their grandmother, Berta Fossleitner, were made parties to this proceeding, nor does it appear that any notice whatsoever was given to them concerning the matter. The Orphans’ Court apparently entered said order without even holding a hearing.
Upon this appellee’s presentation to the Circuit Court at Steyr, Austria, of the order of the Allegheny County Court appointing him guardian of the persons of the children, that Court awarded custody of the children to the appellee. This order or judgment was reversed on appeal by the Supreme Court of Vienna, which held that the aforesaid order of the Orphans’ Court of Allegheny County, Pennsylvania, dated June 12, 1963, did not bind Berta Fossleitner, since she was not a party to the proceeding, and had no notice of the proceeding and no chance to raise her objections to a change of custody.
[332] On July 5, 1961, appellee filed in the Orphans’ Court of Allegheny County a new petition for the custody of these minors. On the same day, the Orphans’ Court entered an order directing that a citation issue, directed to Berta Fossleitner, to show cause why appellee should not he appointed guardian of the persons of said minor children. The order fixed the time and place for a hearing on the petition, and also provided that at least ten days’ written notice of the hearing should be given to Berta Fossleitner by serving her personally at Hollensteiner Str. 217, Weyer, Austria, by handing to her the citation and a copy of the petition and order of the Court dated July 5, 1967. A copy of the citation together with a copy of the petition and the aforesaid order of the Court were served personally upon Berta Fossleitner on July 26, 1967, in Weyer, Austria, by Dr. Friedrich Grohs, the Austrian attorney who represented appellee in the proceedings before the Austrian Courts.
Appellee admitted in his petition that both of the children involved in the present custody proceedings are nonresidents of the Commonwealth of Pennsylvania, that they reside at the home of their maternal grandmother in Weyer, Austria, and that they have resided there (almost) since the murder of their mother in 1962. However, appellee alleged in his petition that the Orphans’ Court of Allegheny County, Pennsylvania, had jurisdiction because the children are technically domiciled in Allegheny County, Pennsylvania. This averment of jurisdiction was based on the presumption that minor children have the domicile of their father, which was alleged to be Allegheny County because the father was a lodger therein prior to his last enlistment in the military service in 1952.
Berta Fossleitner, the maternal grandmother of the minors, filed preliminary objections to the jurisdiction [333] of the Allegheny County Orphans’ Court. The preliminary objections were dismissed and Berta Fossleitner was directed to answer within fifteen days. She did not file an answer. Nevertheless, the case was heard in the Allegheny County Orphans’ Court on September 16, 1968. Thereafter, that Court entered a decree appointing Harry W. Huck guardian of the persons of his nephew and niece, Rudolf Harry Huck and Mary Jane Huck. After the dismissal of exceptions and the entry of a final decree, the grandmother appealed to this Court.
The question of whether a legal and realistic domicile or a bona fide residence (not attained temporarily or by arbitrarily keeping or abducting a child) is the paramount consideration in the determination of jurisdiction, and the law on this point is not well settled. Moreover, the question and application of comity in the determination of jurisdiction is often a “ticklish” one.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Chief Justice Bell,
The facts in this case are both unusual and complicated. The maternal grandmother of two minor children, Rudolf Harry Huck, now eleven years old, and his sister, Mary Jane Huck, age nine, took this appeal from the final decree of the Orphans’ Court of Allegheny County dated October Ilf, 1968. In and by that decree, the Orphans’ Court appointed Harry W. Huck, who is the paternal uncle of the minor children (and the appellee in this case), guardian of the persons of the minors, thereby taking the children from their grandmother with whom they had been living in Aus[330] tria almost since birth and gave them to a total stranger to live in a (to them) foreign Country and in a State other than Pennsylvania.
The father of the children, Herbert E. Huck, was born in Pittsburgh on November 23, 1927. He remained a resident of Allegheny County until July 2, 1945, when he enlisted in the United States Army. At the termination of his service, he returned to Pittsburgh and lived in that City as a lodger with a married couple until March 29, 1952, when he re-enlisted in the Army. So far as the record shows, he had never resided in Pittsburgh after that date. On January 31, 1957, he married Maria Anna Fossleitner at Weyer, Austria. Mrs. Huck became a naturalized citizen of the United States on February 12, 1960.
On or about June 29, 1962, Herbert E. Huck, while in the military service and stationed at Nuremberg, Germany, killed his wife with a knife. Thereafter, the United States military authorities took the minor children into custody, contacted Berta Fossleitner, their maternal grandmother, at her home in Austria, and had her come to West Germany where the Army delivered into her custody the Hucks’ two minor children. Ever since that time, the children have resided with their grandmother in Austria. Their father, Herbert E. Huck, is mentally ill and incompetent, and since June 29, 1962, has been in the custody of the United States military authorities. He is presently institutionalized in a United States Government Hospital, St. Elizabeth’s Hospital, in Washington, D. C.
In October of 1962—three months after the murder —the present appellee, who resided then and still resides at 4508 Woodlark Place, Rockville, Maryland, began proceedings in the District Court of Steyr, Austria, to obtain, with the consent of his brother,* custody of [331] these children. Shortly thereafter, Berta Fossleitner, the maternal grandmother of the children, filed an action in the County Court of Weyer, Austria, seeking the permanent custody of the children. That Court entered an interlocutory order granting custody of the children to their grandmother, subject to a determination of the American law of the domicile of the children, with the further provision that if the Court of the domicile of the children failed to assume jurisdiction of the children and of their custody, the Court would enter a permanent order granting custody to the children’s grandmother.
On June 12, 1963, appellee presented and filed a petition in the Orphans’ Court of Allegheny County, Pennsylvania, praying that he be appointed guardian of the persons of the minors, Rudolf Harry Huck and Mary Jane Huck. On the same date, the Orphans’ Court entered an order granting the prayer of appellee’s petition. Neither the children nor their grandmother, Berta Fossleitner, were made parties to this proceeding, nor does it appear that any notice whatsoever was given to them concerning the matter. The Orphans’ Court apparently entered said order without even holding a hearing.
Upon this appellee’s presentation to the Circuit Court at Steyr, Austria, of the order of the Allegheny County Court appointing him guardian of the persons of the children, that Court awarded custody of the children to the appellee. This order or judgment was reversed on appeal by the Supreme Court of Vienna, which held that the aforesaid order of the Orphans’ Court of Allegheny County, Pennsylvania, dated June 12, 1963, did not bind Berta Fossleitner, since she was not a party to the proceeding, and had no notice of the proceeding and no chance to raise her objections to a change of custody.
[332] On July 5, 1961, appellee filed in the Orphans’ Court of Allegheny County a new petition for the custody of these minors. On the same day, the Orphans’ Court entered an order directing that a citation issue, directed to Berta Fossleitner, to show cause why appellee should not he appointed guardian of the persons of said minor children. The order fixed the time and place for a hearing on the petition, and also provided that at least ten days’ written notice of the hearing should be given to Berta Fossleitner by serving her personally at Hollensteiner Str. 217, Weyer, Austria, by handing to her the citation and a copy of the petition and order of the Court dated July 5, 1967. A copy of the citation together with a copy of the petition and the aforesaid order of the Court were served personally upon Berta Fossleitner on July 26, 1967, in Weyer, Austria, by Dr. Friedrich Grohs, the Austrian attorney who represented appellee in the proceedings before the Austrian Courts.
Appellee admitted in his petition that both of the children involved in the present custody proceedings are nonresidents of the Commonwealth of Pennsylvania, that they reside at the home of their maternal grandmother in Weyer, Austria, and that they have resided there (almost) since the murder of their mother in 1962. However, appellee alleged in his petition that the Orphans’ Court of Allegheny County, Pennsylvania, had jurisdiction because the children are technically domiciled in Allegheny County, Pennsylvania. This averment of jurisdiction was based on the presumption that minor children have the domicile of their father, which was alleged to be Allegheny County because the father was a lodger therein prior to his last enlistment in the military service in 1952.
Berta Fossleitner, the maternal grandmother of the minors, filed preliminary objections to the jurisdiction [333] of the Allegheny County Orphans’ Court. The preliminary objections were dismissed and Berta Fossleitner was directed to answer within fifteen days. She did not file an answer. Nevertheless, the case was heard in the Allegheny County Orphans’ Court on September 16, 1968. Thereafter, that Court entered a decree appointing Harry W. Huck guardian of the persons of his nephew and niece, Rudolf Harry Huck and Mary Jane Huck. After the dismissal of exceptions and the entry of a final decree, the grandmother appealed to this Court.
The question of whether a legal and realistic domicile or a bona fide residence (not attained temporarily or by arbitrarily keeping or abducting a child) is the paramount consideration in the determination of jurisdiction, and the law on this point is not well settled. Moreover, the question and application of comity in the determination of jurisdiction is often a “ticklish” one.
In order for the lower Court to exercise jurisdiction, there must be a legally recognized relationship between the State and the persons over whom the State seeks to exercise jurisdiction. A State has power to exercise judicial jurisdiction over an individual who is either a resident or a domiciliary of the State. Restatement 2d, Conflict of Laws, Proposed Official Draft §27. In this case, we must determine whether the minor children have the kind of relationship with the State of Pennsylvania and the County of Allegheny which is legally sufficient to make the exercise of jurisdiction in the Allegheny County Orphans’ Court both proper and reasonable. Restatement 2d, Conflict of Laws, Proposed Official Draft §24. It is a general rule that a minor cannot acquire a residence or domicile of his own apart from one of his parents: 3 Hunter, Orphans’ Court 146, §2(b) ; McIlhenney Guardian, 3 Pa. D. & C. 2d 561, 563 (1955) ; 5 Partridge-Remick, Penn[334] sylvania Orphans’ Court Practice 210, §36.05. Partridge-Remick aptly states: “Section 1011(a) of the Fiduciaries Act of 1949 provides: ‘A guardian of the person or of the estate of a minor may be appointed by the court of the county in which the minor resides.’*
“It has been held that the jurisdiction to appoint a guardian depends in general on the residence of the minor.
“Where the parents resided in Philadelphia at the time of the father’s death in 1909, and the mother continued to reside in Philadelphia until she remarried in 1913, but thereafter lived with her second husband in Montgomery County where the minor was taken and thereafter resided with her mother and stepfather, jurisdiction to appoint a guardian of the minor’s estate belonged to the orphans’ court of Montgomery County.
“ITpon the separation or divorce of the parents, a child acquires the domicile of the parent with whom he resides or to whom custody of the child has been given.
“When both parents are dead, the court of the county in which the minor resided with his grandparents has jurisdiction.”
It is also a general rule that a minor has the same residence and domicile as the parent with whom he lives. However, if one parent dies or is incompetent, the minor’s domicile is that of the surviving parent; or if both parents are dead, or one is dead and the other parent is incompetent or cannot be found, or if the minor is abandoned by both parents and no guardian has been appointed, the child can acquire a resi[335] dence and domicile at the home of a grandparent or other person who stands in loco parentis to him and with whom he lives: McIlhenney Guardian, 3 Pa. D. & C. 2d, snpra. Unless there is some compelling or adequate reason to the contrary, the child’s domicile should be in the place or home of the person with whom he lives, especially if that person stands in loco parentis to him, even though that person is not a blood relative: Restatement 2d, Conflict of Laws, Proposed Official Draft §22, comment i.
Comment i is as follows: “i. ‘Natural’ guardian. If both parents of a child are dead, or if the child is abandoned by both parents or by a surviving parent, and no guardian of the child’s person is appointed, the child should acquire a domicil [e] at the home of a grandparent or other person who stands in loco parentis to him and with whom he lives. To date, the cases have placed the child’s domicil [e], in the circumstances dealt with here, at the home of a grandparent or other close relative. Absent some compelling reason to the contrary, the child’s domicil [e] should be in the place to which he is most closely related. The child should therefore have a domicil [e] at the home of the person who stands in loco parentis to him and with whom he lives even though this person is not a blood relative.”
The paternal uncle to whom the Orphans’ Court of Allegheny County awarded the custody of these minor children lives in Rockville, Maryland, in a split-level, four-bedroom home which is occupied by himself and his wife, three minor children and his mother-in-law.
Under the facts in this case, to give jurisdiction of these young children (aged 9 and 11) to the Orphans’ Court of Allegheny Oounty, and permit that Court to award custody of the minor children to a stranger who lives in an overcrowded home in Maryland, would be an improper and unwarranted and unwise stretch of [336] the law; it would in all likelihood create a grievous offense to comity; and it would undoubtedly result in a gross miscarriage of Justice.
The dissenting Opinion would uproot these 11-year-old and 9-year-old youngsters from their home in Austria, in which they have been living during their young lives (seven years) and bring them to a foreign (to them) Country where they do not know our language or customs, to live with a stranger whom they have never seen. The dissenting Opinion gives three reasons or grounds for such an inhumane position,—“that the schools which the children would attend in Austria provided neither the facilities nor the opportunities that would be available to the children if they lived with appellee [in Rockville, Maryland], and that college training would likely be impossible . . . [and] that in Austria, the children would have a limited choice of occupations in a primarily rural area.”
Life on a farm or in a rural district, whether here or in a foreign Country, often brings contentment or happiness far greater than in a turbulent city. Education received in Pittsburgh or even in Rockville, Maryland, is important, and is often an essential step toward employment in business or acquiring wealth, but it does not follow that it brings happiness or even a job, either in Rockville or in Pittsburgh, or in rural Austria.
The next reason or ground upon which the dissenting Judge bases his Opinion is that the wishes of their demented murderer-father should be one of the important considerations for completely changing the lives of these two young children whom the father has not seen for seven years. No words are needed to describe the foolishness of this contention. The appellee, who is seeking from the Orphans’ Court of Allegheny County custody of thése children, lives in Maryland and does. [337] not live and has not lived in Pittsburgh for thirteen years. Where the significant legal connections and relationship with the State (Commonwealth) of Pennsylvania and with the Orphans’ Court in Pittsburgh, Pennsylvania, are as scant as they are in this case, then, with respect to jurisdiction and comity, and especially from the standpoint of the welfare and the best interests of the children, it would be unreasonable and improper and unwise to grant jurisdiction in this case to the Orphans’ Court of Allegheny County.
Decree reversed, each party to pay own costs.
Mr. Justice Cohen concurs in the result.
Mr. Justice O’Brien took no part in the consideration or decision of this case.