J.D. v. N.T. (n.k.a. T.) ( 2017 )

J-A21035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
N.T. (N.K.A. T.) : No. 353 WDA 2017
Appeal from the Order entered March 2, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No: FD 06-9214-002
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 16, 2017
J.D. (“Father”) appeals from the March 2, 2017 order in the Court of
Common Pleas of Allegheny County that granted, in part, the petition of N.T.
(N.K.A. T.) (“Mother”), to enforce the child custody order issued in the Kobe
Family Court, Japan, pursuant to the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), 23 Pa.C.S. § 5401, et seq., with respect to the
parties’ son, L.N.D.1 In addition, the March 2, 2017 order vacated the prior
orders entered in the Allegheny County Court of Common Pleas awarding
custody to Father. Upon careful review, we affirm.
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1
L.N.D. was born in November of 2001. At the time of the subject
proceedings, L.N.D. was fifteen years old.
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For a recitation of the complete factual and procedural history of this
case, we refer the reader to the trial court’s comprehensive opinion pursuant
to Pa.R.A.P. 1925(a), which the testimonial and documentary evidence
supports. See Trial Court Opinion, 4/11/17, at 1-14. As such, we adopt it
herein. Id.
By way of background, Father, who was born in Allegheny County,
Pennsylvania, and Mother, who was born in Japan, were married in 1994.
Trial Court Opinion, 4/11/17, at 1. Their children, L.N.D., and his older
brother, J.L.D.,2 were born in Japan. Id. L.N.D. lived in Japan all of his life,
but he traveled to Allegheny County at times with Father to visit his paternal
relatives, inter alia. Id.
In 2005, Mother and Father obtained a divorce decree in Japan. Id. at
2. In February of 2005, they entered into a legally binding custody
agreement in Japan whereby they shared physical custody of L.N.D., and
Mother had “parental authority” over L.N.D.3 Id. In January of 2007,
Mother and Father participated in a Japanese custody mediation, which
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2
J.L.D., who was born in August of 1998, is an adult, and is not a subject of
this appeal. As such, the trial court did not include J.L.D. in its recitation of
the procedural history of this case.
3
With respect to their 2005 Japanese custody agreement, and the
subsequent Japanese child custody orders, infra, the parties agree that
“parental authority” relates to the concept of legal custody in Pennsylvania
child custody law. See Father’s Brief at 3-4; Mother’s Brief at 3, n. 1;
Father’s reply brief at 4-5.
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resulted in an agreement that Father would have “parental authority” over
L.N.D., and that the parties would continue to share physical custody. Id. at
4.
On November 3, 2006, Father initiated a custody action in the
Allegheny County Court of Common Pleas (“trial court”). Father alleged, in
part, pursuant to the 2005 Japanese custody agreement, that L.N.D. was in
his care and custody for greater than one-half of the time. Id. at 2; Petition
to Confirm Custody, 11/3/06, at ¶ 10. Specifically, Father alleged that
L.N.D. was in his custody in Allegheny County from July 25, 2006, through
November 3, 2006, the date Father filed the custody complaint. Trial Court
Opinion, 4/11/17, at 3. Father requested primary physical and legal custody
based on L.N.D. having “lived throughout [his] li[fe] in Pennsylvania.” Id.
The trial court explained, “Mother did not appear to contest” Father’s
custody complaint, and the trial court granted his request by order dated
November 3, 2006. Id. Importantly, Father never sought to enforce the
trial court’s order in Japan, where he and L.N.D. had subsequently returned.
Id. at 4.
On September 26, 2012, Mother filed a custody action in the Kobe
Family Court, Japan, wherein she requested “parental authority” and custody
of L.N.D. Id. at 5. Father filed his own petitions in Japan, wherein he
requested, inter alia, enforcement of his “parental authority” and full
custody. Id. In fact, Father alleged that Mother sexually abused L.N.D.,
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which caused L.N.D. to develop dissociative identity disorder. See Kobe
Family Court Decision and Order, 3/20/15, at 12.
By order dated March 20, 2015, the Kobe Family Court granted
Mother’s request for “parental authority” and for physical custody of L.N.D.
Trial Court Opinion, 4/11/17, at 9. The Kobe Family Court found, inter alia,
after full investigation, that Mother did not sexually abuse L.N.D. See Kobe
Family Court Decision and Order, 3/20/15, at 14. Further, the Kobe Family
Court found that L.N.D. does not suffer from dissociative identity disorder or
any other mental disorder. Id. Father appealed the custody order to the
Osaka High Court, Tenth Civil Division, Japan, which affirmed the order on
August 20, 2015. See Osaka High Court, Tenth Civil Division, Decision and
Order, 8/20/15. Thereafter, Father filed an appeal to the Second Petty
Bench, Supreme Court, Japan, which, by unanimous opinion, dismissed the
appeal by order dated December 16, 2015. See Second Petty Bench,
Supreme Court, Order, 12/16/15.
After the January 2007 Japanese custody mediation agreement, as
well as during the pendency of the child custody litigation commenced by
Mother in Japan in September 2012, Father filed multiple custody petitions
in the trial court. Father omitted material facts in his petitions. Specifically,
Father did not aver “anything about the parties’ 2007 Japanese mediation . .
. agreement regarding shared physical custody, Mother’s initiation of
Japanese legal proceedings in 2012, Father’s own and subsequent initiation
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of Japanese legal proceedings, that the parties had undergone multiple
Japanese custody mediations, or that the Japanese legal proceedings were
ongoing.”4 Trial Court Opinion, 4/11/17, at 6.
During the pendency of Father’s appeals of the custody order in Japan,
Father continued to present motions to the trial court seeking relief “without
mentioning the Japanese legal proceedings or that Mother had actually been
awarded parental authority and physical custody of [L.N.D.] in Japan.” Id.
at 9 (citation to record omitted).
Finally, in July of 2016, Father presented an ex parte emergency
motion in the trial court, wherein he alleged, inter alia, that L.N.D. would be
traveling with Mother in Canada in August of 2016. Id. at 10. Father
requested that the trial court issue an order directing the Canadian
authorities to, in part, transfer L.N.D. from Mother’s custody to his physical
custody, which the trial court granted. Id. at 10-11. As such, in August of
2016, Father obtained custody of L.N.D. in Canada, and they came to
Pennsylvania. Id. at 11.
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4
In March of 2009, and again in June of 2013, Father requested clarification
of the 2006 custody order, initially seeking primary legal and physical
custody of L.N.D., and then seeking sole legal and physical custody of L.N.D.
Trial Court Opinion, 4/11/17, at 4, 6. On May 24, 2013, and July 5, 2013,
Father filed petitions for contempt against Mother. Id. at 5, 7. In December
of 2013, Father filed a protection from abuse (“PFA”) petition against
Mother, wherein he alleged that Mother was sexually assaulting L.N.D. Id.
at 7. The trial court entered orders granting all of Father’s requested relief.
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In September of 2016, Mother filed the subject petition in the trial
court, wherein she requested that it (1) enforce the Japanese custody order;
(2) vacate the trial court’s previous custody orders; and (3) obtain sanctions
against Father for failure to disclose the Japanese proceedings to the court.
The trial court held an evidentiary hearing on October 14, 2016, November
18, 2016, January 27 and 30, 2017, February 3, 7, and 9, 2017. The trial
court summarized the parties’ arguments as follows.
Mother contends she is entitled to enforcement of the Japanese
order pursuant to the [UCCJEA], specifically 23 Pa.C.S. §§ 5405
[(International application of chapter)], 5448 [(Expedited
enforcement of child custody determination)], and 5453 [(Duty
to enforce)]. Mother further argues that Father’s custody orders
entered in [the trial] [c]ourt should be afforded no weight or
merit as (i) [the trial] [c]ourt did not have jurisdiction to enter
them under the UCCJEA, see 23 Pa.C.S. § 5421(a) [(Initial child
custody determination)]; (ii) even if [the trial] [c]ourt had
jurisdiction to enter them, it no longer has such jurisdiction, see
23 Pa.C.S. § 5424 [(Temporary emergency jurisdiction)]; and
(iii) should the foregoing two positions fail, jurisdiction should
nevertheless be declined pursuant to 23 Pa.C.S. § 5427
[(Inconvenient forum)].
Father rejects Mother’s arguments, contending, among other
things, that (i) [the trial] [c]ourt had jurisdiction to initially enter
the November 2006 custody order; (ii) [the trial] [c]ourt has
never lost jurisdiction; (iii) the Japanese courts, accordingly,
never had jurisdiction to enter the custody order made final in
2015 since jurisdiction has always resided in [the trial] [c]ourt;
(iv) the Japanese legal process and system denied Father[,] and
will continue to deny Father[,] important legal and human rights,
including the right to cross-examine Mother and to have joint
custody of [L.N.D.]; and (v) [the trial] [c]ourt may invoke
emergency jurisdiction under the UCCJEA should the foregoing
arguments lack merit.
Order, 3/2/17, at 7.
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By order dated March 2, 2017, the trial court granted Mother’s
petition, in part, as follows:
1) Mother’s Petition is granted in the following respects: the
Japanese custody order made final on December 16, 2015 shall
be enforced, and [the trial court’s] orders awarding custody of
[L.N.D.] to Father are hereby vacated due to the lack of initial,
continuing, or emergency jurisdiction.
2) The Japanese legal proceedings did not deprive Father of
notice or the opportunity to be heard.
3) The Japanese child custody laws do not violate fundamental
principles of human rights.
4) The parties’ claims concerning sanctions and attorneys’ fees
are preserved for future proceedings.
Order, 3/2/17, at 8.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed its Rule 1925(a) opinion on April 11, 2017.
Father presents the following issues for our review:
a. Whether the trial court erred by finding that there was not
Emergency Jurisdiction under the UCCJEA[?]
b. Whether the trial court erred by finding that it did not have
subject matter jurisdiction and/or finding that subject matter
jurisdiction was lost[?]
c. Whether the trial court erred by vacating any protection from
abuse orders[?]
d. Whether the trial court erred in failing to find that [M]other
waived her challenge to subject matter jurisdiction[?]
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e. Whether the trial court erred by denying [F]ather the right to
call witnesses, such as Dr. Bruce Chambers and Annette Tierney
as applied to emergency jurisdiction[?]
f. Whether the trial court erred by failing to admit certain
evidence and testimony of the child’s abuse[?]
g. Whether the trial court erred by not finding that the Japanese
court lacked subject matter jurisdiction[?]
h. Whether the trial court erred by finding that the Japanese
custody law does not violate fundamental principles of human
rights[?]
i. Whether the trial court erred by finding that the Japanese
custody law does not violate due process[?]
Father’s Brief at 2.5
In reviewing Father’s issues on appeal, we apply the following
standard:
[W]here [t]he issue for review centers on the question of subject
matter jurisdiction….this question is purely one of law, our
____________________________________________
5
On June 16, 2017, Father filed a motion to strike Appellee’s Brief due to
her failure to comply with Pa.R.A.P. 2117(a)(4) (Statement of the Case) and
2119(c) (Argument). Specifically, Father avers that Mother’s brief does not
include any citations to the reproduced record or the certified record in
support of her recitation of the relevant facts in the case. Further, Father
avers that this Court should strike Mother’s appellee brief because her
counsel did not provide his counsel with a hardcopy of the brief in violation
of Pa.R.A.P. 2187(a)(3) (providing, “each party shall serve 2 copies of its
definitive brief and reproduced record on every other party separately
represented”). However, Father asserts that he received an electronic copy
of Mother’s brief on the date she filed it in this Court’s PACfile system. Upon
review, Father does not allege that he suffered any prejudice due to
Mother’s noncompliance with the foregoing rules, nor are we aware of any.
Indeed, the parties are well acquainted with the facts of this case, and
Mother served Father with her appellee brief. Accordingly, we deny Father’s
motion.
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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) (quotations and
citations omitted).6
Initially, the UCCJEA applies to child custody determinations issued in
foreign countries, as follows:
§ 5405. International application of chapter.
(a) Foreign country treated as state. — A court of this
Commonwealth shall treat a foreign country as if it were a state
of the United States for the purpose of applying Subchapter B
(relating to jurisdiction) and this subchapter.
(b) Foreign custody determinations. — Except as otherwise
provided in subsection (c), a child custody determination made
in a foreign country under factual circumstances in substantial
conformity with the jurisdictional standards of this chapter must
be recognized and enforced under Subchapter C (relating to
enforcement).
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6
In S.K.C. v. J.L.C., 94 A.3d 402 (Pa. Super. 2014), this Court
differentiated between an appeal from an order to exercise or decline
jurisdiction, which would be subject to an abuse of discretion standard. We
explained:
This language is accurate in that, when a trial court possesses
subject matter jurisdiction over a child custody dispute, a trial
court’s decision to exercise that jurisdiction is subject to an
abuse of discretion standard of review. However, we have
imprecisely quoted this language even when the question was
not whether the trial court properly exercised (or declined to
exercise) jurisdiction, but rather the question was whether the
trial court actually possessed subject matter jurisdiction.
Id. at 406-407.
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(c) Violation of human rights. — A court of this
Commonwealth need not apply this chapter if the child custody
law of a foreign country violates fundamental principles of
human rights.
23 Pa.C.S. § 5405.
Pennsylvania has jurisdiction to make an initial child custody
determination as follows, in relevant part:
§ 5421. Initial child custody jurisdiction.
(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:
(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;
(3) all courts having jurisdiction under paragraph (1) or (2)
have declined to exercise jurisdiction on the ground that a
court of this Commonwealth is the more appropriate forum to
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determine the custody of the child under section 5427 or
5428; or
(4) no court of any other state would have jurisdiction
under the criteria specified in paragraph (1), (2) or (3).
(b) Exclusive jurisdictional basis. — Subsection (a) is the
exclusive jurisdictional basis for making a child custody
determination by a court of this Commonwealth.
...
23 Pa.C.S. § 5421(a), (b).
We also observe Section 5425 (Notice; opportunity to be heard;
joinder) which provides, in part, that the UCCJEA “does not govern the
enforceability of a child custody determination made without notice or any
opportunity to be heard.” 23 Pa.C.S. § 5425(b).
Finally, Section 5424 (Temporary emergency jurisdiction) provides in
relevant part:
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.
23 Pa.C.S. § 5424(a).
Father first argues, with respect to issue “h,” that the trial court erred
in failing to find that Japan’s child custody laws violate fundamental human
rights. Father also argues, with respect to issue “i,” that the trial court erred
in failing to find that the Japanese courts violated his guarantee of due
process. Therefore, Father argues that the trial court erred by enforcing the
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Japanese custody order pursuant to Section 5405(c) (International
application of chapter) and 5425(b) (Notice; opportunity to be heard;
joinder). Next, regarding issue “a,” Father argues that the trial court erred
in concluding that it did not have emergency jurisdiction under Section 5424
(Temporary emergency jurisdiction); namely, to protect L.N.D. from alleged
sexual abuse by Mother. Father argues that it follows, with respect to issues
“e” and “f,” the trial court erred by prohibiting him from presenting
witnesses and documentary evidence with respect to Mother’s alleged sexual
abuse of L.N.D. With respect to issues “b” and “g,” Father argues that the
trial court erred in finding that it did not have subject matter jurisdiction
under Section 5421 (Initial child custody jurisdiction). Regarding issue “c,”
Father argues that the trial court erred by vacating the protection from
abuse orders entered against Mother. Finally, regarding issue “d,” Father
argues that the trial court erred in failing to find that Mother waived her
argument that the trial court did not have subject matter jurisdiction.
We have reviewed the subject March 2, 2017 custody order in light of
the parties’ briefs, the certified record, the trial court’s Rule 1925(a) opinion,
and the relevant UCCJEA provisions. It is important to note the trial court’s
credibility determinations against Father as follows, which the record
evidence supports.
[M]ultiple pleadings from Father omit[ed] material information
and, at times, contain[ed] outright falsehoods. Father, the
[trial] [c]ourt believes, sought to dupe [the] [c]ourt throughout
this process. Father argued facts in [the] [trial] [c]ourt which
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were completely contrary to concessions he freely made in the
Japanese Court, i.e., that his travels to [Allegheny County] were
for vacation, that Father wanted Japan to be the “home base” of
[L.N.D.], and that [L.N.D.] lived in Japan.
Trial Court Opinion, 4/11/17, at 22.
The trial court concluded that it never had initial child custody
jurisdiction under Section 5421, supra. We agree. The trial court aptly
explained:
[L.N.D.] lived in Japan. Mother lived in Japan. Father lived in
Japan. Travel to [Allegheny County] was temporary, and
[L.N.D.] and Father always intended to return to Japan, until
Father -- under false pretenses; after having lost custody
litigation in Japan; and after Japan determined, following an
investigation, that Mother did not sexually abuse [L.N.D.] -- took
custody of [L.N.D.] in Canada last year. Japan was and always
has been [L.N.D.]’s home state; jurisdiction was and has always
been appropriate there. No litigable threat or danger to [L.N.D.]
from Mother in Japan exists for the [trial] [c]ourt to legitimately
conclude otherwise.
Id. at 23 (emphasis in original; footnote omitted).
Likewise, we agree that the trial court properly refused to exercise
temporary emergency jurisdiction under Section 5424, supra. The trial court
explained that Father argued it should invoke emergency jurisdiction to
protect L.N.D. “from threatened sexual abuse. . . . See Father’s
Supplemental Trial Memo at 9-10.” Id. at 21. The trial court reasoned:
[A]llegations of sexual abuse by Mother against [L.N.D.] were
investigated in Japan. [L.N.D.], his brother, Mother, her current
husband, among others, were interviewed. Ultimately, Mother
was awarded parental authority and custody of [L.N.D.] in
Japan, it was determined that Mother did not sexually abuse
[L.N.D.], and no criminal charges were filed by the Japanese
authorities.
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. . . [The trial] [c]ourt, accordingly, declined (i) to assert
emergency jurisdiction pursuant to previously litigated and
baseless claims and (ii) to permit Father another “bite at the
apple” by re-litigating said claims here. . . .
Id.
Upon careful review, we conclude that the thorough opinion by the
Honorable Susan Evashavik DiLucente, filed on April 11, 2017, pursuant to
Pa.R.A.P. 1925(a), addresses all of the issues raised by Father and supports
the reasons for the trial court’s decision to grant Mother’s request to enforce
the Japanese custody order and vacate the trial court’s previous orders
awarding Father custody of L.N.D. We conclude that the trial court did not
commit an error of law. Accordingly, we adopt the trial court’s April 11,
2017 opinion as our own.7
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7
On August 14, 2017, Father filed a motion to supplement wherein he
requested permission to supplement the certified record before this Court
with an “affidavit of translation,” which he attached to the motion as Exhibit
A. The affidavit translates Mother’s July 31, 2017 response to Father’s
petition filed against her in the Kobe Family Court, Japan, to change the
person with “parental authority” over L.N.D. In said response, Mother
requested that Father’s petition be dismissed on the basis that she no longer
had “parental authority” over L.N.D. Rather, Mother avers that L.N.D.’s
maternal grandfather has “parental authority” over him. Mother averred
that the maternal grandfather gained “parental authority” by legally
adopting L.N.D. in Japan on July 7, 2017.
On August 25, 2017, Mother filed an answer to the motion to supplement,
and Father filed a reply on August 30, 2017. In her answer, Mother avers
that Father “attempts to supplement the certified record without providing
Mother the ability to confront Father’s factual allegations. . . .” Answer,
8/25/17, at 4. Moreover, Mother avers that Father does not provide an
(Footnote Continued Next Page)
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Order affirmed. Motion to strike Appellee’s brief denied. Motion to
supplement denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2017
_______________________
(Footnote Continued)
applicable Pennsylvania appellate rule or case law that supports his request
that this Court open the certified record to consider new evidence. We
agree. Accordingly, we deny Father’s motion to supplement.
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