Zellat v. Zellat

506 A.2d 946, 351 Pa. Super. 623, 1986 Pa. Super. LEXIS 10028
CourtSupreme Court of Pennsylvania
DecidedMarch 27, 1986
Docket00930
StatusPublished
Cited by10 cases

This text of 506 A.2d 946 (Zellat v. Zellat) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zellat v. Zellat, 506 A.2d 946, 351 Pa. Super. 623, 1986 Pa. Super. LEXIS 10028 (Pa. 1986).

Opinion

CIRILLO, Judge:

This child custody action was initiated by appellant, a Pennsylvania resident, for the custody of his daughter Jessica. Jessica’s residence has been with her Tennessee resident mother since October 1, 1983.

The trial court found no basis for the assumption of jurisdiction and it sustained appellee-mother’s preliminary objection to jurisdiction and dismissed appellant-father’s complaint for custody and visitation. We affirm.

Jessica Rae Zellat was born on January 8, 1980 of the marriage of David and Ruby Zellat. The appellee filed a divorce complaint containing a request for custody in Phila *626 delphia Common Pleas Court on July 31, 1981. On September 26, 1983, the mother filed a report of child abuse with the Pennsylvania Department of Public Welfare. The department investigated the report and issued its own report on November 28, 1983 indicating that the child had been abused while in the care of one of the parents. The report did not indicate which parent inflicted the abuse. On October 1, 1983, the child was removed from Philadelphia by her mother and taken to Tennessee, where mother and child continued to live until the time of this appeal. On February 9, 1984, a Tennessee court issued an order restraining the father from any contact with the child. The father appeared before the Tennessee court to contest the restraining order which was subsequently dismissed. By an order dated August 1, 1984, the Tennessee court granted appellant limited visitation rights under the supervision of the Tennessee Department of Human Services pending further review by the court. The Tennessee court reissued the restraining order on October 18, 1984 based on a detailed assessment of the case by a clinical psychologist appointed by the Tennessee Department of Human Services. This order provided for possible future review by the Tennessee court but precluded any contact between appellant and the child.

On July 17, 1984, appellant filed a complaint in the Court of Common Pleas of Philadelphia County for custody, partial custody, or visitation. Appellee filed a petition to dismiss the complaint, alleging that the Pennsylvania court did not have jurisdiction over the custody action and that Tennessee had previously exercised jurisdiction. The trial court dismissed appellant’s complaint following a jurisdictional hearing. This appeal followed.

Appellant raises three issues for our determination: 1) whether the 1981 filing of a complaint for divorce and custody by appellee-wife in Pennsylvania may serve as the basis for the exercise of “home state” jurisdiction by a Pennsylvania court in a subsequent proceeding instituted by appellant-husband to gain custody of a child who has been *627 absent from Pennsylvania for over six months; 2) whether the State of Tennessee is the appropriate forum to decide the issue of child custody; and 3) whether the Tennessee court exercised jurisdiction over the custody proceeding for the purposes of the Uniform Child Custody Jurisdiction Act (UCCJA) by issuing restraining and other orders regarding visitation.

The Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq., governs our determination of the issues raised by appellant. The general purposes of the Act mandate:

that litigation concerning the custody of a child take[] place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

42 Pa.C.S. § 5342(a)(3). See also Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984); Commonwealth ex rel. Earl R.D. v. Linde H.S., 297 Pa.Super. 78, 443 A.2d 307 (1982); Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980).

Section 5344(a) of the Act provides the basis for “home state” and “best interests” jurisdiction over interstate custody disputes:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custo *628 dy or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth; (2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child ...

“Home state” is defined in § 5343 of the Act as “the state in which the child immediately preceding the time involved lived with his parents ... for at least six consecutive months____”

Appellant first contends that the trial court erred in declining to exercise home state jurisdiction. He argues that the trial court mistakenly considered July 17, 1984 as the “commencement of the proceeding” for the purpose of determining the existence of home state jurisdiction under Section 5344(a)(1). Appellant urges that July 31, 1981, the date that appellee filed her complaint for divorce and custody in Pennsylvania, should be the operative date for determining home state jurisdiction.

We do not agree with appellant’s construction of the language in § 5344(a)(1). First, we are guided by the presumption that the legislature does not intend a result that is absurd or unreasonable. 46 Pa.C.S. § 552(1). It would be absurd to construe the words “the proceeding” so as to encompass any and all actions filed in this Commonwealth regardless of their antiquity or dormancy. In the instant case, appellant points to “the proceeding” initiated by another party some three years prior to his own institution of a proceeding designed to secure custody of the child. The record before us does not indicate, and appellant does not argue, that he or anyone else ever pursued or defended appellee’s 1981 action. Appellant is the only party who has *629 initiated a “proceeding” requiring an application of the Act.

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Bluebook (online)
506 A.2d 946, 351 Pa. Super. 623, 1986 Pa. Super. LEXIS 10028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zellat-v-zellat-pa-1986.