H.D. v. D.O. ( 2017 )

J-A08030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.O.
Appellee No. 3578 EDA 2016
Appeal from the Order Dated November 7, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2016-005769
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED May 19, 2017
H.D. (“Father”) appeals from the order, entered in the Court of
Common Pleas of Delaware County, denying his requests for relief in this
custody matter. After our review, we affirm.
Father and D.O. (“Mother”) have a seven-year-old son (“Child”), who
resides with Mother in Anchorage, Alaska. Child was born in Alaska. Father
left Alaska in 2013, and he now resides in Yeadon, Delaware County. Child
spent summer break from school with Father during the summer of 2014,
and returned to Alaska for the 2014-15 academic year. Child also spent the
summer of 2015 with Father in Pennsylvania, but Father failed to return
Child to Alaska in August 2015.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On September 28, 2015, Mother filed a complaint for custody in
Alaska. The Alaska court held several hearings and determined it had
jurisdiction over the matter.
In July 2016, Father commenced a custody action in Delaware County.
A temporary order was entered on September 2, 2016, denying Father’s
request due to an existing order in Alaska. On September 26, 2016, Father
filed a petition to vacate/request for hearing, and on October 5, 2016, Father
filed a petition for emergency special relief. On October 7, 2016, the trial
court entered an order stating it could not exercise jurisdiction due to
simultaneous proceedings in Alaska.
On October 12, 2016, Father filed a motion for reconsideration, and
Mother filed a motion to dismiss. Father filed preliminary objections to
Mother’s motion to dismiss and on October 17, 2016, the court entered an
order scheduling a hearing on Father’s petitions, at which time Father would
be allowed to present evidence or argument with respect to jurisdiction.
On November 4, 2016, the court entered an order denying Father’s
motion for reconsideration and dismissing his custody complaint pursuant to
23 Pa.C.S.A. § 5426(a). The court also entered an order denying Father’s
petition for emergency relief, and an order denying Father’s motion to
dismiss and his preliminary objections to Mother’s petition to dismiss.
On November 17, 2016, Father filed a notice of appeal, a court-
ordered concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and an emergency motion to stay enforcement in
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Pennsylvania of certain Alaskan court orders. He raises the following issues
for our review:
1. Whether the court committed reversible error and/or abused its
discretion by declining to entertain emergency jurisdiction
pursuant to 23 Pa.C.S.A. § 5424(a).
2. Whether the court committed reversible error and/or abused its
discretion by declining to entertain general jurisdiction given
that: (a) Alaska was not the home state of the child at the time
that the Alaska petition was docketed; (b) the parents mutually
agreed that the child would reside in Pennsylvania due to the
child abuse occurring in Mother’s home in Alaska; and (c) no
sufficient service of process was ever perfected in Alaska to
preempt Pennsylvania jurisdiction?
3. Whether or not the respective due process rights of both the
Father and [C]hild have been violated by the State of Alaska,
and concomitantly by the Commonwealth of Pennsylvania, with
respect to Alaska’s exercise of jurisdiction and with respect to
each state’s administration of the Uniform Child Custody
Jurisdiction and Enforcement Act [UCCJEA].
4. Whether or not Mother unduly benefited by her appearance in
the proceedings below without conforming to Pa.R.C.P. 1915.3-
2, which mandates that all parties file and serve an initial
verification regarding any criminal record or abuse history of
that party and anyone living in that party’s household. The
court therefore failed its preliminary duty to evaluate the
person in Mother’s household who poses a danger to the child
(e.g., Mother’s husband, who has seven protection from abuse
orders directed against him and two separate violations of
those orders).
Appellant’s Brief, at 4.
For the following reasons we conclude that the trial court did not err in
determining it did not have jurisdiction under section 5426(a), and in
declining to exercise emergency jurisdiction under section 5424(a) of the
UCCJEA. We, therefore, affirm the trial court’s order.
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The issue of subject matter jurisdiction is a question of law. Our
standard of review is de novo, and our scope of review is plenary. B.J.D. v.
D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011).
A court's decision to exercise or decline jurisdiction is subject to
an abuse of discretion standard of review and will not be
disturbed absent an abuse of that discretion. Under Pennsylvania
law, an abuse of discretion occurs when the court has overridden
or misapplied the law, when its judgment is manifestly
unreasonable, or when there is insufficient evidence of record to
support the court's findings. An abuse of discretion requires clear
and convincing evidence that the trial court misapplied the law
or failed to follow proper legal procedures.
Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005) (quoting Lucas
v. Lucas, 882 A.2d 523, 527 (Pa. Super. 2005)) (citation omitted).
The purpose of the UCCJEA1 is to avoid jurisdictional competition,
promote cooperation between courts, deter the abduction of children, avoid
relitigation of custody decisions of other states, and facilitate the
enforcement of custody orders of other states. J.K. v. W.L.K., 102 A.3d
511 (Pa. Super. 2014).
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1
The UCCJEA, 23 Pa.C.S.A. § 5401 et seq., 2004, June 15, P.L. 236, No. 39,
§ 3, replaced the Uniform Child Custody Jurisdiction Act (UCCJA) in 2004,
however, much of the case law as decided under the UCCJA is still
applicable. Alaska has also adopted a version of the UCCJEA. See Alaska
Stat. § 25.30.300 et seq.
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Here, Mother filed a complaint in custody in Alaska on September 21,
2015. See Complaint for Custody, 9/21/15. The Alaska court entered an
interim custody order on August 2, 2016.2
Father filed a custody complaint in Delaware County on March 24,
2016. On October 6, 2016, the court determined it did not have jurisdiction
because a prior action had been commenced in Alaska and that action had
not been terminated or stayed. See Trial Court Order, 10/6/16. See also
Harcar v. Harcar, 982 A.2d 1230, 1237–38 (Pa. Super. 2009) (action is
pending from commencement to final determination on appeal, or until time
for appeal has expired; because policy against simultaneous custody
proceedings is so strong, courts should refrain from exercising jurisdiction to
further purposes of UCCJEA).
Our review of the record supports the court’s findings, and, therefore,
we find no error or abuse of discretion in the court’s determination that it did
not have jurisdiction under section 5426(a). Wagner, supra. See also
See also C.L. v. Z.M.F.H., 18 A.3d 1175, (Pa. Super. 2011) (husband’s
custody complaint filed at time wife's complaint for divorce and custody was
pending in tribal court in South Dakota; under UCCJEA, there were
simultaneous proceedings in South Dakota tribal court and Pennsylvania
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2
The Alaska order gave interim primary custody and legal custody to
Mother. The order also scheduled a hearing for September 13, 2016, prior
to entry of a final custody and support order. Alaska Order, 8/2/16.
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court such that Pennsylvania court was required to stay proceedings and
communicate with tribal court to determine which jurisdiction was more
appropriate forum); Carpenter v. Carpenter, 474 A.2d 1124, 326 (Pa.
Super. 1984) (Pennsylvania trial court properly vacated earlier award of
temporary custody and stayed custody proceeding before it, after being
informed Massachusetts court was already exercising jurisdiction to decide
custody, and after determining Massachusetts court intended to assert
continuing jurisdiction).
However, there remains the question of whether the trial court
properly determined that it could not exercise emergency jurisdiction
pursuant 23 Pa.C.S.A. § 5424. Section 5424 provides, in relevant part:
§ 5424. Temporary emergency jurisdiction
(a) General rule.--A court of this Commonwealth has
temporary emergency jurisdiction if the child is present in this
Commonwealth and the child has been abandoned or it is
necessary in an emergency to protect the child because the child
or a sibling or parent of the child is subjected to or threatened
with mistreatment or abuse.
(b) No previous custody determination or proceeding.--If
there is no previous child custody determination that is entitled
to be enforced under this chapter and a child custody proceeding
has not been commenced in a court of a state having jurisdiction
under sections 5421 (relating to initial child custody jurisdiction)
through 5423 (relating to jurisdiction to modify determination), a
child custody determination made under this section remains in
effect until an order is obtained from a court of a state having
jurisdiction under sections 5421 through 5423. If a child custody
proceeding has not been or is not commenced in a court of a
state having jurisdiction under sections 5421 through 5423, a
child custody determination made under this section becomes a
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final determination if it so provides and this Commonwealth
becomes the home state of the child.
(c) Previous custody determination or proceeding.--If
there is a previous child custody determination that is entitled to
be enforced under this chapter or a child custody proceeding has
been commenced in a court of a state having jurisdiction under
sections 5421 through 5423, any order issued by a court of this
Commonwealth under this section must specify in the order a
period that the court considers adequate to allow the person
seeking an order to obtain an order from the state having
jurisdiction under sections 5421 through 5423. The order issued
in this Commonwealth remains in effect until an order is
obtained from the other state within the period specified or the
period expires.
(d) Mandatory communication between courts.--A court of
this Commonwealth which has been asked to make a child
custody determination under this section, upon being informed
that a child custody proceeding has been commenced in or a
child custody determination has been made by a court of a state
having jurisdiction under sections 5421 through 5423, shall
immediately communicate with the other court. A court of this
Commonwealth which is exercising jurisdiction pursuant to
sections 5421 through 5423, upon being informed that a child
custody proceeding has been commenced in or a child custody
determination has been made by a court of another state under
a statute similar to this section, shall immediately communicate
with the court of that state to resolve the emergency, protect
the safety of the parties and the child and determine a period for
the duration of the temporary order
23 Pa.C.S.A. § 5424 (emphasis added). This particular section of the
UCCJEA is “reserved for extraordinary circumstances.” 23 Pa.C.S.A. § 5424
- Uniform Law Comment. Essentially, a court may exercise jurisdiction to
enter a temporary order to protect the child until the state that has
jurisdiction enters an order. Id.
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At the hearing on Father’s motion for reconsideration, Father’s
attorney presented argument; Mother testified telephonically. Father
presented no evidence that Child was in danger. The record indicates that
Mother acknowledged that her husband was diagnosed with bipolar disorder
in June 2015, that his medication caused attacks of mania, and that she
moved out temporarily while he stabilized on different medication. See
Mother’s Affidavit, 8/23/16, at 3. The record also discloses that at that time
Mother had filed a petition for protection against her husband. 3 Father’s
attorney cross-examined Mother as follows:
Q: I know you can’t see who is in the courtroom, but [Father’s]
girlfriend is in the courtroom, Ms. Salas.
A: Yes.
Q: I understand in the summer of – June, I should say. Around
June of 2015 you had certain conversations with Ms. Salas,
correct?
A: Yes, that is correct.
Q: Did you not explain to Ms. Salas the conditions that were
going on with your husband’s protection order in June of –
A: I did.
Q: Okay. Did you not disclose to Ms. Salas that you wanted the
child to reside here [in Pennsylvania] until that situation was
sorted out?
A: I did say that. However, when I did say that I think both
parties need to be [i]n agreement. I want what’s best for my
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3
A 20-day protection order was granted. Thereafter, the case was closed
because Mother did not appear at the “long-term hearing.” See Alaska
Order, 6/22/15.
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son. That’s why I disclosed what happened. That’s what
parents are supposed to do.
[FATHER’S COUNSEL]: That’s all the questions I have.
Reconsideration Hearing, 10/21/16, at 31-32.
We agree with the trial court that Father presented no evidence
indicating that it was “necessary in an emergency to protect the child
because the child or a sibling or parent of the child is subjected to or
threatened with mistreatment or abuse.” 23 Pa.C.S.A. § 5424(a). We find
no abuse of discretion. Wagner, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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