Larson v. Diveglia , 449 Pa. Super. 545 ( 1996 )

POPOVICH, Judge:

In an issue of first impression, we are asked to decide whether a person, not a parent, having undisputed physical custody of a child has standing to petition the court for child support in the absence of a court order granting such custody. We find that such a custodial person does have standing, and, accordingly, we reverse the lower court.

The record indicates that appellant filed a complaint for child support in the Court of Common Pleas of Blair County. In response, appellee filed preliminary objections. The lower court granted appellee’s preliminary objections, thereby dismissing appellant’s complaint, because it determined that appellant did not have standing to institute a support action on behalf of Paul Diveglia, II. The sole issue raised on appeal by appellant is whether the lower court erred in determining that the absence of a court order awarding him legal custody or primary physical custody of Paul Diveglia, II, precluded him from having standing to bring an action for child support. Appellant contends that because he has actual physical custody of the child, i.e., the child resides with him, he has standing to bring an action for child support on behalf of the child. After a careful review of the record, the parties’ briefs and the applicable law, we reverse and remand for proceedings in accordance with the provisions of this opinion.¹

The record reveals the following facts: Ap-pellee and his ex-wife had one child, Paul Diveglia, II, who was born on November 20, 1984. While appellee and his ex-wife were going through the process of divorce, their child resided primarily with appellant and his wife, Gloria Larson. Ms. Larson is the child’s paternal aunt. As a result of appellee and his ex-wife being unable or unwilling to care for the child, the lower court entered an order on May 5, 1995, whereby temporary legal and physical custody was given to Ms. Larson. Although the lower court was aware that Ms. Larson was married to appellant, it did not specifically include him in the court order. However, the parties do not dispute that the child resides with both Ms. Larson and appellant in their home, and that appellant is the primary wage earner for his family, including the child at issue. The child has resided with Ms. Larson and appellant for approximately five years.

Following the entry of the temporary custody order, Ms. Larson refused to file a complaint for support. In light of the financial expenses incurred by appellant while providing for the child’s needs, he filed a complaint for support against appellee. As discussed previously, appellee filed preliminary objections, and the lower court dismissed appellant’s complaint. Appellant brought this timely appeal challenging the propriety of the lower court’s granting of appellee’s preliminary objections, resulting in dismissal of appellant’s complaint for lack of standing.

To determine whether appellant has standing in this matter, we must first examine Pennsylvania Rule of Civil Procedure 1910.3. Rule 1910.3 provides, in pertinent part, that “[a]n action [for support] shall be brought ... (2) on behalf of a minor child by a person having custody of the minor, without appointment as guardian ad litem,_” Pa.R.C.P. 1910.3(2) (emphasis added). “Custody” is defined as “the legal right to keep, control, guard, care for and preserve a child and includes the terms ‘legal custody,’ ‘physical custody,’ and ‘shared custody.’” Pa.R.C.P. 1915.1(b). See Bratton v. Jury, 435 Pa.Super. 110, 644 A.2d 1259 (1994). “Legal custody” is defined as “the legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions; ....” Pa.R.C.P. 1915.1(b). “Physical custody” is defined as “[t]he actual physical possession and control of a child.” Pa.R.C.P. 1915.1(b).

Appellant admits that it his wife, Ms. Larson, who has “legal custody” of the child. However, he argues that both he and his wife have “physical custody” of the child and, therefore, he has standing to bring a support action on the child’s behalf. We agree.

The particular question in this case regarding appellant’s “physical custody” of the child is one of first impression in the appellate courts of Pennsylvania. However, we have addressed situations similar to this.

In Trosky v. Mann, 398 Pa.Super. 369, 581 A.2d 177 (1990), we considered whether the Children’s Home of Reading (Home) was entitled to receive support from appellant for the time during which his child resided at the Home. In this case, the appellant did not consent to the child staying at the Home and he never signed any documents to that effect. We held that the determination of a parent’s liability for his child’s upbringing, i.e., support, is to be done on a case-by-case basis. Trosky, 581 A.2d at 180. We further held that a parent has a stringent obligation to support his child aged eighteen or less, and, therefore, the Home was entitled to receive support from appellant for the expenses incurred by it in the performance of services for the minor child. Id. We note that the Home did not have “legal custody” of the child, and the child was not staying at the Home pursuant to a court order.

In Bratton v. Jury, 435 Pa.Super. 110, 644 A.2d 1259 (1994), we considered whether ap-pellee, the maternal grandmother who had physical custody of the children at issue, could legally bring a child support action. In this case, Beaufort County Department of Social Services in North Carolina had “legal custody” of the children. However, the Beaufort County Family Court transferred primary physical custody of the children to appellee, who resided in Pennsylvania. Appellant argued that pursuant to Pennsylvania Rule of Civil Procedure 1910.3, only a person who has “legal custody” of a child can bring a support action. We found appellant’s argument to be meritless and held that a person who has primary physical custody of a child has standing to bring a support action on a child’s behalf. Therefore, the maternal grandmother had standing to bring a support action.

In the case at bar, the lower court acknowledged our decision in Bratton but determined that it was distinguishable from the present case. The lower court held that appellant does not have standing in this matter because, unlike the maternal grandmother in Bratton, he does not have “physical custody” of the child pursuant to a court order. In its opinion, the lower court stated that “[petitioner herein has no court order for custody. Defacto custody can not super-eede written and express court orders.” Trial Court Opinion at 3.

Contrary to the lower court’s holding, we find that neither the language of the statute nor any Pennsylvania appellate decision limits the definition of “physical custody” only to those individuals who have physical custody pursuant to a court order. Clearly, the express language of Rules 1910.3(2) and 1915.1(b) indicates that a party has standing to bring an action for child support on behalf of a child if the party has “physical custody,” which the statute defines as “actual physical possession and control of a child.” We find that “physical custody” means literal actual physical possession and control of a child, and, therefore, the manner in which the child came into the non-parent’s physical possession, i.e., without a court order, is not fatal to the finding of standing. We further note that our literal interpretation of the term “physical custody” is supported by the fact that our legislature has expressly indicated that the term “custody” includes both “legal custody” and “physical custody,” thereby indicating that it did not intend to equate “physical custody” with “legal custody” which requires a court order.

Here, it is undisputed by the parties that appellant has actual physical possession and control of the child in this case. That is, it is undisputed that the child resides with appellant and that appellant is the primary wage earner for the child, providing him with the necessities of life. Therefore, we find that appellant has “physical custody” of the child and has standing to bring a support action on the child’s behalf.

We note that our literal interpretation of “physical custody” is in keeping with the overriding policy of promoting the best interest of the child.

[We have held that] [a]t common law, the duty of a parent to support his child was conditioned upon a parent receiving love, affection and assistance from that child. Contrary to the common law, today, the duty to support a minor child is absolute. ... [I]n awarding child support, we must be cognizant of its purpose which is to promote the best interest of the child.

Oeler v. Oeler, 527 Pa. 532, 594 A.2d 649, 651 (1991). In addition, financial support is an obligation shouldered by a parent and accruing to a child. That is, child support is a benefit for the minor child, not for the recipient custodial adult. Id.

As discussed previously, our decision today, which establishes that appellant has standing to bring a support action on the child’s behalf because he has “physical custody,” furthers this overriding policy of promoting the best interest of the child. Moreover, were we to conclude that appellant does not have standing in this case because of the absence of a court order, we would be holding in essence that appellant, the primary wage earner for his family, could not be reimbursed for the necessities of life which he has provided to the child, necessities of life which are the obligation of appellee to his child. See Trosky, supra (holding that it is a parent’s obligation to provide for the reasonable expenses of raising a child).

For all of the foregoing reasons, we reverse and remand for proceedings in aecor-dance with the provisions of this opinion, Jurisdiction relinquished.

JOHNSON, J. files a Dissenting Opinion.

1 . We note with disapproval that appellant’s brief does not include a "Statement of Questions Involved” as is required by P.R.A.P. 2116(a). Generally, questions not presented in the “Statement of Questions Involved” are deemed waived. See Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 614 A.2d 699 (1992). However, the issue raised by appellant in the argument section of his appellate brief suggests the specific issue which we are being asked to review. Therefore, appellant’s failure to comply with Rule 2116(a) does not impede our ability to review the issue, and, accordingly, we will address the merits of his appeal. Savoy v. Savoy, 433 Pa.Super. 549, 641 A.2d 596 (1994).