Moffitt v. Moffitt

514 A.2d 184, 356 Pa. Super. 142, 1986 Pa. Super. LEXIS 11933
CourtSuperior Court of Pennsylvania
DecidedAugust 28, 1986
DocketNo. 03083
StatusPublished
Cited by3 cases

This text of 514 A.2d 184 (Moffitt v. Moffitt) 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
Moffitt v. Moffitt, 514 A.2d 184, 356 Pa. Super. 142, 1986 Pa. Super. LEXIS 11933 (Pa. Ct. App. 1986).

Opinion

ROBERTS, Judge:

This is an appeal from an order dismissing, for lack of jurisdiction, a counterclaim in a custody action. We hold that in the circumstances presented, the Northampton County Court of Common Pleas has jurisdiction to determine the merits of the counterclaim under the Uniform Child Custody Jurisdiction Act, 42 Pa. C.S.A. §§ 5341-5366. Accordingly, we vacate the order dismissing the counterclaim and remand for proceedings consistent with this opinion.

I.

The Uniform Child Custody Jurisdiction Act (hereinafter “UCCJA” or “the Act”) was designed to insure that custody disputes would be heard in the state where the child and his family had the closest connection, to discourage abductions by parents without legal custody of their children, and to promote cooperation between states issuing custody awards, 42 Pa. C.S.A. § 5342, Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa, Super. 294, 300, 418 A.2d 729 (1980), aff'd, 492 Pa. 183, 423 A.2d 333 (1980). Accordingly, § 5344 of [144]*144the Act provides three bases for the assumption of jurisdiction in a child custody dispute: first, a Pennsylvania court can take jurisdiction if Pennsylvania a) is the child’s home state at the commencement of the proceeding, or b) had been his “home state” within six months of commencement, and one of his parents continues to live in the Commonwealth. Second, a Pennsylvania court has jurisdiction when the child and at least one of the parties contesting custody have a significant connection with Pennsylvania and substantial evidence is available here concerning the child’s present or future care, protection, training and personal relationships. Finally, in a situation not relevant here, a Pennsylvania court has “parens patriae” jurisdiction when a child is abandoned, abused or dependent. See, generally, 42 Pa. C.S.A. § 5344; Rohrer v. Rohrer, 345 Pa. Super. 469, 476, 498 A.2d 919 (1985); Warman v. Warman, 294 Pa. Super. 285, 293, 439 A.2d 1203 (1982).

Moreover, the Act empowers a court to refrain from asserting jurisdiction, even when otherwise properly held, if the party seeking custody has improperly brought the child to Pennsylvania from another state, 42 Pa. C.S.A. § 5349, Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (1980). A court may also decline jurisdiction when it finds that Pennsylvania is an inconvenient forum and another state is a more convenient forum, 42 Pa. C.S.A. § 5348, Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa. Super. 322, 326, 434 A.2d 774 (1981). The Pennsylvania version of the Act also includes a provision which allocates jurisdiction between and among courts of common pleas in the same manner in which the Act itself confers jurisdiction between and among courts of different states, 42 Pa. G.S.A. § 5364.

II.

The parties to this appeal were divorced by decree entered in Lackawanna County in June, 1984. When the divorce action began, the Lackawanna court ordered that the mother would have custody of their two children, a [145]*145ten-year-old son and a six-year-old daughter. However, the record indicates that the father took the son to Florida to live while the divorce was pending. After the divorce decree was entered, the son remained with his father in Florida, apparently with the consent of his mother. Meanwhile, the daughter remained in Pennsylvania with her mother. There were no further proceedings in the Lackawanna divorce action to determine custody of the children.

In 1985, the father brought an action for custody in Lackawanna County. The mother and daughter had since moved to Northampton County, a fact which prompted the court to dismiss the action on venue grounds. In May, 1985 the father filed a second action in Northampton County, seeking custody of both children. He later deleted the claim for his son, who continued to live with him in Florida. The mother responded with a counterclaim for the son, to which the father objected on the ground that Pennsylvania lacked jurisdiction under the UCCJA to consider it.

The trial court agreed, reasoning that Florida, not Pennsylvania, was the son’s “home state”. Further, the court held that a finding that another state was the child’s home state precluded the assumption of jurisdiction on any other ground. In any event, the court explained, it lacked jurisdiction under 42 Pa. C.S.A. § 5364, since Northampton County was neither the child’s “home county”, nor were there “significant contacts” with Northampton to compel the exercise of jurisdiction.

III.

On appeal, the mother argues that the Northampton action was in substance a petition for modification of the existing Lackawanna order. Accordingly, she contends that the son’s “home state” within six months of commencement of the Lackawanna divorce proceeding should control. We need not address the difficult question of when this custody action commenced, however, because we hold that the UCCJA contemplates “significant contacts” jurisdiction even when the “home state” is not the forum state. More[146]*146over, assuming without deciding that Pennsylvania was not the child’s home state, we hold that there are significant contacts here and that the dismissal of the counterclaim was error.

The trial court relied on this court’s decision in Tettis v. Boyum, 317 Pa. Super. 8, 463 A.2d 1056 (1983) to support its conclusion that when a state other than Pennsylvania is a child’s “home state”, a Pennsylvania court cannot exercise jurisdiction on a “significant contacts” theory. While language in Tettis suggests that a Pennsylvania court should refrain from assuming jurisdiction when another state is the child’s home state, 317 Pa. Super, at 15, 463 A.2d 1056, the case itself held that the exercise of jurisdiction by Pennsylvania was proper, even though the child’s “home state” was Texas. The court wrote: “ ... while home state jurisdiction is favored as the preferable basis of jurisdiction ..., ‘the Act clearly implies that there will be factual situations that will impel a court to accept jurisdiction even when ‘home’ jurisdiction exists elsewhere’ ”, 317 Pa. Super, at 18 (citations omitted). See also Hattoum v. Hattoum, 295 Pa. Super. 169, 175, 441 A.2d 403 (1982).

The question for resolution thus becomes whether this factual situation is one which impels a court to accept jurisdiction. More precisely, our determination depends on whether an exercise of “significant contacts” jurisdiction substantially furthers the policies underlying the UCCJA.

Clearly, each individual involved in this custody litigation has a significant connection with Pennsylvania. The child’s mother and sister live in Pennsylvania, and the child spent the first several years of his life here.

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Cite This Page — Counsel Stack

Bluebook (online)
514 A.2d 184, 356 Pa. Super. 142, 1986 Pa. Super. LEXIS 11933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moffitt-v-moffitt-pasuperct-1986.