J.J. v. S.G.G. ( 2018 )

J-A12004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.G.G. :
:
Appellant : No. 3825 EDA 2017
Appeal from the Order Entered October 31, 2017
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2017-3205
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JULY 10, 2018
S.G.G. (“Father”) appeals from the order entered October 31, 2017,
awarding primary physical custody of the parties’ son, S.G.G., to J.J.
(“Mother”). We affirm.
Mother and Father met while attending college in Hampton County,
Virginia and S.G.G. was born in Pennsylvania in August 2009. Five months
later, Mother returned to Virginia to live with Father. Their relationship
deteriorated approximately one year after her return. During 2013, Father
moved to Brooklyn, New York, where he remains. Mother stayed in Virginia,
and commenced child custody proceedings against Father. Those proceedings
culminated in a series of custody orders awarding Mother primary physical
custody of their son. The most recent custody order was entered on August
16, 2015.
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In March 2016, Mother moved from Virginia to Pennsylvania. Although
neither party remained in Virginia at that time, on May 4, 2016, Father filed
in Virginia a pro se motion to amend the August 10, 2015 custody order. On
November 3, 2016, Virginia’s Hampton Juvenile and Domestic Relations
District Court entered an order that modified the custody arrangement
slightly, but maintained primary physical custody of S.G.G. with Mother. That
order included a provision relinquishing jurisdiction over the matter because
neither party continued to reside in Virginia.1 Father appealed the domestic
relations court’s order for de novo review in the Hampton Circuit Court. At
the conclusion of the ensuing evidentiary hearing, the Hampton Circuit Court
issued an oral ruling that awarded Mother primary physical custody of S.G.G.
Consistent with local practice in Hampton County, Virginia, on July 11,
2017, the attorneys for Mother and Father appeared before the Hampton
Circuit Court so that it would sign a written order memorializing the oral ruling
that was issued on April 21, 2017. The Hampton Circuit Court immediately
entered an order that reflected its decision to grant Mother primary physical
custody of S.G.G., and remanded jurisdiction of the custody dispute to
Pennsylvania. However, upon review of Father’s intervening motion for
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1 On April 13, 2017, Mother sent a letter to the Northampton County Court of
Common Pleas, asking “to have this case/order transferred to Northampton
County, Pennsylvania where we now reside.” Letter, 4/13/2017. The trial
court registered the November 3, 2016 order in Pennsylvania, but took no
further action.
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reconsideration of the court’s oral order, which assailed Mother for moving the
child a short distance within Pennsylvania without notice, the Hampton Circuit
Court reversed the order entered minutes earlier. Without considering any
additional evidence, that court issued an oral directive that awarded primary
physical custody of S.G.G. to Father.2
Mother filed a pro se motion for reconsideration of the Hampton Circuit
Court’s oral ruling, asserting that she did not receive proper notice of the July
11, 2017 proceeding. Father countered with a motion to show cause, which
revived his prior claim that Mother’s move was improper. On August 31, 2017,
the Hampton Circuit Court entered the written order that formally awarded
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2 During the subsequent custody proceedings in Pennsylvania, the trial court
indicated that the Pennsylvania custody master called the Hampton Circuit
Court and inquired about the volte-face. N.T., 9/19/17, at 91. The trial court
reported the Virginia court’s response as follows:
Th[e Virginia] judge sat on th[e] Order for a long time, and the
lawyers down there started complaining to his office about it. So
he sent it around to get a signature, and then he was going to
enter the Order. And then he directed the lawyers to come into
his office on July 11th, and then he filed this Order on July 11th.
And then without notice to [Mother], he made a record with those
other lawyers, and then he changed his mind with this, and he
entered a new Order without taking any additional testimony or
having the child in front of him[.] [A] child that he recognized in
all his Orders belongs in Pennsylvania. And he entered an Order
taking that child from [Mother], and had directed [Mother] to
come down, with no prior warning that when she got down there,
he was going to take that child from her. That’s what he did.
Id.
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Father primary physical custody of S.G.G., and it dismissed Father’s motion
to show cause. Again, as it had in its previous orders, the Hampton Circuit
Court relinquished jurisdiction of the case to Pennsylvania.3 Specifically, the
court “ORDERED, that all issues dealing with Custody, Visitation or Support of
this child are hereby remanded to the appropriate court in Easton,
Pennsylvania.” Emergency Motion for Special Relief, 8/31/17, Exhibit B
(unnumbered at 4).
Mother immediately filed a counseled emergency petition for special
relief in Pennsylvania, in which she averred that Father signed S.G.G. out of
school on August 28, 2017, and absconded with him.4 At the same time,
Mother filed a petition for modification of custody, requesting changes to the
Virginia custody order. The Pennsylvania trial court conducted an emergency
hearing on September 1, 2017. Following the hearing, on September 5, 2017,
the trial court entered an order concluding that Virginia lacked jurisdiction to
award primary physical custody of S.G.G. to Father, and vacating the August
31, 2017 order. The trial court directed that Father return S.G.G. to
Pennsylvania immediately, and awarded primary physical custody to Mother.
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3 On September 28, 2017, the Hampton Circuit Court entered a revised
custody order retroactive to August 31, 2017, that corrected a typographical
error in the prior order. On the same date, the court denied Mother’s motion
for reconsideration, and, again, remanded jurisdiction of the case to
Pennsylvania.
4 Mother attached a signed copy of the August 31, 2017 order to her
Pennsylvania court filings.
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The trial court conducted a full evidentiary hearing on September 19,
2017, and October 11, 2017, during which Mother, Father, and S.G.G.
testified. On October 31, 2017, the trial court entered the order that is the
genesis of this appeal. That order concluded once again that Virginia lacked
jurisdiction over the parties’ custody dispute, and awarded primary physical
custody of S.G.G. to Mother during the school year. Father was awarded
periods of partial physical custody on alternating weekends from Friday at
6:00 p.m. until Sunday at 6:00 p.m. During the summer months, the parties
alternate custodial periods with Father exercising three consecutive weeks
custody, followed by Mother’s two weeks of custody. They share legal
custody.
Father timely filed a notice of appeal and complied with the trial court’s
order directing him to file a concise statement of errors complained of on
appeal within twenty-one days.5 Father presents two issues claims for our
review:
A. Did the [trial c]ourt abuse its discretion in vacating the Virginia
Order and failing to afford it full faith and credit?
B. Did the [trial c]ourt err in substituting its judgment for the
judgment of the Virginia Court?
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5 Father violated 1925(a)(2)(i) by failing to file a concise statement at the
same time as his notice of appeal. However, since he complied with the trial
court’s subsequent Rule 1925(b) order, we decline to find waiver due to the
technical misstep. See In re K.T.E.L., 983 A.2d 745, 748 (Pa.Super. 2009)
(holding that appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i)
did not warrant waiver of her claims because there was no prejudice to any
party).
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Father’s brief at 9.
Both of Father’s claims challenge the Pennsylvania trial court’s
conclusion that Virginia lacked jurisdiction to enter the August 31, 2017 order,
and its ability to vacate that order in favor of its own assessment of S.G.G.’s
best interests. As these claims present a pure question of law, our standard
of review is de novo and our scope of review is plenary. S.K.C. v. J.L.C., 94
A.3d 402, 408 (Pa.Super. 2014).
The Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), 23 Pa.C.S. § 5401 et seq., governs jurisdictional questions in
interstate child custody disputes.6 The UCCJEA’s purpose is to “avoid
jurisdictional competition, promote cooperation between courts, deter the
abduction of children, avoid relitigating custody decisions of other states, and
facilitate the enforcement of custody orders of other states.” A.L.-S. v. B.S.,
117 A.3d 352, 356 (Pa.Super. 2015).
In this case, the parties and the trial court agree that Virginia retained
jurisdiction to enter a custody order while Mother and S.G.G. continued to
reside there. However, Father asserts that the trial court erred by concluding
that Virginia lost jurisdiction after Mother and S.G.G. moved back to
Pennsylvania. We focus our attention on § 5423 of the UCCJEA, which governs
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6Pennsylvania and Virginia have both adopted the UCCJEA. See VA. Code §
20-146.1 et seq.
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when a Pennsylvania trial court may modify a child custody order entered in
a different state:
Except as otherwise provided in section 5424 (relating to
temporary emergency jurisdiction), a court of this Commonwealth
may not modify a child custody determination made by a court of
another state unless a court of this Commonwealth has jurisdiction
to make an initial determination under section 5421 (a)(1) or (2)
(relating to initial child custody jurisdiction) and:
(1) the court of the other state determines it no longer
has exclusive, continuing jurisdiction under section
5422 (relating to exclusive, continuing jurisdiction) or
that a court of this Commonwealth would be a more
convenient forum under section 5427 (relating to
inconvenient forum); or
(2) a court of this Commonwealth or a court of the
other state determines that the child, the child’s
parents and any person acting as a parent do not
presently reside in the other state.
23 Pa.C.S. § 5423.
As the plain language of § 5423 demonstrates, a trial court in
Pennsylvania may modify a custody order entered by a court of a different
state if it determines that it has jurisdiction to render an initial child custody
determination pursuant to § 5421(a)(1) or (2), and that the requirements of
§ 5423(1) or (2) are met. The UCCJEA provides, in relevant part, that a court
may make an initial child custody determination under the following
circumstances:
(a) General rule.--Except as otherwise provided in section 5424
(relating to temporary emergency jurisdiction), a court of this
Commonwealth has jurisdiction to make an initial child custody
determination only if:
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(1) this Commonwealth is the home state of the child
on the date of the commencement of the proceeding
or was the home state of the child within six months
before the commencement of the proceeding and the
child is absent from this Commonwealth but a parent
or person acting as a parent continues to live in this
Commonwealth;
(2) a court of another state does not have jurisdiction
under paragraph (1) or a court of the home state of
the child has declined to exercise jurisdiction on the
ground that this Commonwealth is the more
appropriate forum under section 5427 (relating to
inconvenient forum) or 5428 (relating to jurisdiction
declined by reason of conduct) and:
(i) the child and the child’s parents, or the
child and at least one parent or a person
acting as a parent, have a significant
connection with this Commonwealth other
than mere physical presence; and
(ii) substantial evidence is available in this
Commonwealth concerning the child’s
care, protection, training and personal
relationships;
23 Pa.C.S. § 5421(a)(1)-(2).7
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7 The UCCJEA defines a child’s “home state” as follows:
“Home state.” The state in which a child lived with a parent or a
person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody
proceeding. In the case of a child six months of age or younger,
the term means the state in which the child lived from birth with
any of the persons mentioned. A period of temporary absence of
any of the mentioned persons is part of the period.
23 Pa.C.S. § 5402.
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Upon review, it is clear that Pennsylvania became S.G.G.’s home state
during September 2016, after he and Mother lived in the state for six months.
Thus, as of that date, the Pennsylvania trial court had jurisdiction to make an
initial child custody determination pursuant to § 5421(a)(1). Likewise, the
procedural posture of this case satisfies the concomitant requirements of
subsections 5423(1) and (2) relating to authority to modify a custody order
entered in a different state. In relation to subsection (1), the Virginia court
expressly remanded the case to Pennsylvania, i.e., the Virginia court
determined that “it no longer ha[d] exclusive, continuing jurisdiction.” 23
Pa.C.S. § 5423(1). Similarly, the case satisfies the alternative condition
pursuant to § 5423(2) because the certified record supports the Pennsylvania
court’s determination that neither Mother, Father, nor S.G.G., continued to
reside in Virginia. See 23 Pa.C.S. § 5423(2) (condition satisfied when “a court
of this Commonwealth . . . determines that the child, the child’s parents and
any person acting as a parent do not presently reside in the other state”).
Therefore, for all of these reasons, the Pennsylvania trial court had jurisdiction
pursuant to § 5423, to modify the existing Virginia custody order.
Father does not confront the UCCJEA’s controlling statutory provisions.
Instead, he contends that Mother waived any challenge to Virginia’s
jurisdiction by requesting relief from the Virginia court and by participating in
the custody proceedings in that jurisdiction without objection. See Father’s
brief at 17, 22-24, 27-28. Father further contends that Virginia had proper
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jurisdiction at the time the custody proceedings commenced during 2014, and
that jurisdiction remained in Virginia because the court did not enter a final
order until August 31, 2017. Id. at 17-19. Father insists that the Virginia
court’s August 31, 2017 order was entitled to full faith and credit, and that
the trial court in Pennsylvania erred by substituting its own judgment for the
judgment of the Virginia court. Id. at 17, 28-29.
Father’s arguments do not lead us to reach a contrary result. Our case
law is clear that Mother could not waive her jurisdictional challenge by
requesting relief from the Virginia court, or by participating in the custody
proceedings there without objection. The UCCJEA governs a court’s subject
matter jurisdiction to enter a child custody order, and it is well established
that issues of subject matter jurisdiction are not susceptible to waiver.
Grimm v. Grimm, 149 A.3d 77, 83 (Pa.Super. 2016).
Father’s insistence that Virginia retained jurisdiction because it did not
enter a final order until August 31, 2017, is equally undeserving of relief.
Father is correct that courts must determine jurisdiction under the UCCJEA at
the time a child custody proceeding commences, and that a court with proper
jurisdiction at the time a proceeding commences will retain that jurisdiction
until the proceeding concludes. See 23 Pa.C.S. § 5422, Uniform Law
Comment (“Jurisdiction attaches at the commencement of a proceeding. If
state A had jurisdiction under this section at the time a modification
proceeding was commenced there, it would not be lost by all parties moving
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out of the state prior to the conclusion of proceeding.”). Thus, Father’s
statement of the law is accurate insofar as jurisdiction remained in Virginia at
the time he filed his May 4, 2016 motion to amend the then-prevailing custody
order entered on August 10, 2015, because S.G.G. had not yet resided in
Pennsylvania for six months. Stated plainly, at that juncture, Pennsylvania
was not S.G.G.’s home state, and the remaining requirements of § 5423 had
not been met.
However, on August 31, 2017, when Mother filed her petition in
Pennsylvania to modify the final custody order entered in Virginia earlier that
day, the Virginia custody proceedings had concluded. Thus, the UCCJEA
required the Pennsylvania trial court to assess whether it had jurisdiction as
of the time Mother commenced this new proceeding in Pennsylvania. It is
clear from our foregoing analysis of the UCCJEA’s statutory framework that
jurisdiction rested in Pennsylvania as of August 31, 2017. Indeed, as we
previously noted, the Virginia courts expressly relinquished jurisdiction to
Pennsylvania in several custody orders, including the August 31, 2017 order
that Mother sought to modify in Pennsylvania.
Based on the foregoing, we conclude that Pennsylvania possessed
jurisdiction over the parties’ child custody dispute, which permitted the trial
court to modify the Hampton Circuit Court’s August 31, 2017 custody order
and perform an independent assessment of S.G.G.’s best interests pursuant
to §§ 5338(a) and 5328(a), relating to the modification of an existing custody
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order and the factors to consider when awarding any form of custody,
respectively. Therefore, we affirm the trial court’s October 31, 2017 order
awarding Mother primary physical custody of S.G.G.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/18
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