A.L-S. v. B.S. ( 2015 )

J-A07030-15
2015 PA Super 125A.L.-S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
V.
B.S.
Appellee No. 1808 WDA 2014
Appeal from the Order October 20, 2014
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 10487 OF 2014, C.A.
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
OPINION BY LAZARUS, J.: FILED MAY 27, 2015
A.L.-S. (“Mother”) appeals from the October 20, 2014 order, entered
in the Court of Common Pleas of Lawrence County, denying her petition for
special relief and granting B.S.’s (“Father”) request for counsel fees. In her
petition, Mother requested the Lawrence County Court exercise jurisdiction
in this custody matter. After our review, we reverse and remand.
Mother and Father are the parents of two minor children, W.S., born in
January 2007, and C.S., born in June 2008. On November 1, 2013, the
Cuyahoga County Court of Common Pleas in Ohio entered an order granting
Father sole legal custody of the children. The Ohio court’s order awarded
the parties shared physical custody of W.S., and it awarded Father primary
physical custody of C.S., subject to Mother’s partial custody rights. 1 The
____________________________________________
1
The Ohio court’s order was not appealed.
J-A07030-15
older child, W.S., is non-verbal/autistic, has moderate to severe disabilities,
and requires constant supervision. Both parents are physicians. Father is
an orthopedic surgeon, and Mother is an OB/GYN.
The parties had resided in Cleveland, Ohio. When they separated,
Father moved to Pennsylvania to live with his parents. The parties were
divorced in 2012, and Mother moved to Pennsylvania in July 2013, as
contemplated by their Shared Parenting Plan.2 Mother filed a motion to
register the foreign custody order in Lawrence County, Pennsylvania, and on
May 8, 2014, the trial court granted that motion.3 See 23 Pa.C.S.A. § 5445.
Mother simultaneously filed a motion to modify custody, claiming the Ohio
court inappropriately granted Father sole legal custody of the children and
inappropriately granted the parties shared physical custody of W.S. Mother
claimed the Lawrence County Court was the proper venue for her to pursue
____________________________________________
2
The Shared Parenting Plan contemplated that Mother would ultimately
move to Pennsylvania to be within 35 miles of Father’s residence so that the
parties could co-parent.
3
The Honorable John W. Hodge entered the following order:
AND NOW, this 8th day of May, 2014, upon consideration of the
Motion to Register Custody Order filed by the Plaintiff, it is
hereby ORDERED that the Order of Court issued by the
Honorable Judge Diane M. Palos of the Court of Common Pleas of
Cuyahoga County, Ohio, at Case No. DR 11338008 shall be
registered with the Office of the Prothonotary of Lawrence
County, Pennsylvania at the above term and number [Case No.
10487 of 2014].
-2-
J-A07030-15
custody as both parties currently live in Lawrence County. See Motion to
Modify Custody, 5/9/14.
Father opposed this motion, filing a Motion to Decline Jurisdiction
under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”),
23 Pa.C.S.A. § 5423,4 on June 4, 2014.
The trial court entered an order declining jurisdiction and directing that
the order of the Cuyahoga County Court in Ohio remain registered in
Lawrence County and enforceable as an order of the Lawrence County Court.
The Lawrence County Court concluded it would not assume jurisdiction over
the case until the Cuyahoga County Court issued an order that relinquished
jurisdiction.5 See Order, 6/4/14.
On June 24, 2014, Mother filed a petition for special relief. Mother
averred that a custody exchange had occurred between the parties’ nannies,
and that Mother’s nanny observed W.S. limping and, after examining his
foot, noticed swelling and bruising on his foot as well as his leg. Subsequent
____________________________________________
4
The National Conference of Commissioners on Uniform State Laws
promulgated the UCCJEA, 23 Pa.C.S.A. §§ 5401-5482, in 1997, and became
effective in Pennsylvania in 2004. The UCCJEA replaced the Uniform Child
Custody Jurisdiction Act (UCCJA), 23 Pa.C.SA. §§ 5341-5366 (repealed
2004). The UCCJEA reenacts many provisions of the UCCJA.
5
Mother avers that she has filed a petition with the Cuyahoga County Court
of Common Pleas requesting it relinquish jurisdiction of the custody action.
At present, there is no indication of a disposition of that petition. See
Petition for Special Relief, 10/21/14, at ¶ 23.
-3-
J-A07030-15
x-rays revealed a fracture to the child’s foot, which required casting. See
Petition for Special Relief, 6/24/14, at ¶¶ 6-11. Mother sought primary
custody pending a full hearing on custody. Id. at ¶¶ 17.6
Father filed an answer and petition for special relief, seeking counsel
fees based on Mother’s “vexatious” conduct. Specifically, Father averred:
“Mother’s conduct is ‘vexatious’ because her Petition for Modification directly
contradicts the June 4, 2014 Order of Court [which declined jurisdiction].”
The trial court denied Mother’s motion to modify custody, denied
Mother’s petition for special relief, and denied Father’s request for counsel
fees. See Order, 6/24/14.
On October 21, 2014, Mother filed another petition for special relief,
claiming W.S. had returned home to her with bruises on his buttocks and
thigh. Mother also reiterated and requested the court exercise emergency
jurisdiction pursuant to 23 Pa.C.S.A. § 5424.7
____________________________________________
6
Mother alleged that W.S.’s inability to explain how he was hurt, as well as
the fact that Father, an orthopedic specialist, did not recognize that his son
had a fractured foot, heightened her concerns.
7
23 Pa.C.S.A. 5424 provides, in part:
(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.
-4-
J-A07030-15
Father filed an answer to Mother’s petition, as well as a petition for
counsel fees. Father alleged Mother’s motions were both vexatious and
repetitive. See Answer, 10/21/14, at ¶¶ 24-46. That same day, the trial
court entered an order denying Mother’s petition and granting Father’s
request for counsel fees. See 23 Pa.C.S.A. § 5339; cf. Chen v. Saidi, 100
A.3d 587 (Pa. Super. 2014). The order stated that
the facts and circumstances alleged in the petition do not
rise to the level necessary for this court to exercise
emergency jurisdiction pursuant to 23 Pa.C.S.A § 5424,
this court having previously on two occasions declined to
accept jurisdiction under the UCCJEA, in that the Court of
Common Pleas of Cuyahoga County, Ohio, has not
relinquished jurisdiction to this Court.
Trial Court Order, 10/20/14.
Mother appealed. She raises the following issues for our review:
1. Whether the trial court committed reversible error by
failing to accept jurisdiction pursuant to 23 Pa.C.S. §
5423 as the Lawrence County Court of Common Pleas
has jurisdiction to make an initial determination under
section 5421 and there is no dispute that the parties
reside in Lawrence County, Pennsylvania, and not in
Ohio?
2. Whether the court committed reversible error and
abused its discretion by failing to accept jurisdiction
pursuant to section 5423 on the grounds that the Court
of Common Pleas of Cuyahoga County, Ohio, has not
relinquished jurisdiction as the UCCJEA does not require
the state of original jurisdiction to relinquish custody
[sic] before the courts of this Commonwealth can
accept jurisdiction so long as the requirements of
section 5423 are met.
3. Whether the trial court committed reversible error and
abused its discretion by summarily declining to exercise
emergency jurisdiction pursuant to section 5424, as
-5-
J-A07030-15
requested within Mother’s petition for special relief,
without conducting a hearing on the matter and
evaluating the merits of the petition?
4. Whether the trial court committed reversible error by
simply concluding that “the facts and circumstances
alleged in [Mother’s] Petition [for Special Relief] do not
rise to the level necessary for this court to exercise
emergency jurisdiction pursuant to section 5424”
without addressing the claims of potential neglect or
abuse that were contained within Mother’s petition and
explaining why such circumstances do not meet the
requirements for emergency jurisdiction?
5. Whether the trial court committed reversible error and
abused its discretion by granting Father’s petition for
counsel fees when the presentation of Father’s request
for such fees was in violation of the Lawrence County
local rules of procedure, L208.3(a)(7), which requires
litigants to provide the opposing party with at least two
(2) days advance notice of their intent to present a
motion and Father failed to provide any advance notice
to Mother of his intent to present such request and
allow Mother a meaningful opportunity to respond?
6. Whether the trial court committed reversible error and
abused its discretion by granting Father’s petition for
counsel fees by declaring that Mother engaged in
repetitive filings pursuant to section 5339 when the
facts and circumstances demonstrate that Mother’s
filings were not repetitive but instead based upon
separate and distinct issues relative to the safety of the
minor child in question?
7. Whether the trial court erred or abused its discretion by
granting Father’s petition for counsel fees pursuant to
section 5339, which is a provision established under the
Child Custody Act and not any provision of the UCCJEA,
thereby selectively accepting jurisdiction and enforcing
certain provisions of the Child Custody Act while
declining to accept and enforce the remainder of its
provisions?
-6-
J-A07030-15
In evaluating whether a court of this Commonwealth may modify a
custody determination made by a court of another state, we look to the
UCCJEA. The purpose of the UCCJEA 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. J.K. v. W.L.K., 102 A.3d 511 (Pa. Super.
2014).
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.
Lucas v. Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted).
See also J.K., supra; J.M.R. v. J.M., 1 A.3d 902, 908 (Pa. Super. 2010).
Based on our careful review of the record, we conclude that the trial court
erred and that its decision to grant Father’s motion to decline jurisdiction
must be reversed. Additionally, we conclude the court’s order granting
Father’s request for counsel fees must also be reversed.
Mother argues in her first issue that the trial court erred in refusing to
exercise jurisdiction over the instant custody dispute. The trial court
engaged in the following analysis:
In evaluating whether a court of this Commonwealth may modify
a custody determination made by a court of another state, the
UCCJEA provides the following relevant provision:
-7-
J-A07030-15
§ 5423. Jurisdiction to modify determination
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.A. § 5423 [emphasis ours].
Therefore, pursuant to 23 Pa.C.S. §5423, this Court first
examined whether there is jurisdiction over the instant custody
matter pursuant to 23 Pa.C.S. §5421. Section 5421 provides:
§ 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;
-8-
J-A07030-15
(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
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).
23 Pa.C.S. § 5421(a) [emphasis ours].
[The trial court concluded:]
As indicated from a strict application of Sections 5423 and 5421,
this Court is unable to assume jurisdiction over the instant case
unless and until all courts having jurisdiction have declined to
exercise jurisdiction on the ground that a court of this
Commonwealth is the more appropriate forum. To date, the
Court of Common Pleas of Cuyahoga County, Ohio has not
issued an Order declining jurisdiction. Consequently this Court
declined to assume jurisdiction of this case.
Trial Court Opinion, 11/14/2014, at 5-7.
-9-
J-A07030-15
We disagree with the trial court’s interpretation. We read section 5421
as stating that a court of this Commonwealth has jurisdiction to make an
initial child custody determination if a court of another state (here, the Ohio
court) does not have jurisdiction under the home state rule. Section 5402 of
the UCCJEA defines “home state” as:
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.A. § 5402. The language of the statute is clear and
unambiguous— a child’s home state is established if the child “lived with a
parent” in that state for six consecutive months prior to the filing of a
custody matter. Id. The parties acknowledge, and the court was aware,
that both parties and the children currently reside in Lawrence County,
Pennsylvania, that the parties work in Pennsylvania, that the children attend
school in Pennsylvania, and that Mother resided in Pennsylvania for six
months prior to filing her motion to modify custody.8 Ohio, therefore, does
not have jurisdiction under the home state rule. The parents and minor
____________________________________________
8
The Honorable Diane M. Palos of the Cuyahoga County Court in Ohio
presided over the initial custody hearing in this case. Judge Palos
acknowledged in her opinion and custody order of October 31, 2103 that
Mother and Father had established their residences in Pennsylvania. See
Opinion and Order, 10/31/13.
- 10 -
J-A07030-15
children have a significant connection with this Commonwealth other than
mere physical presence, and substantial evidence is available in this
Commonwealth concerning the children’s care, protection, and personal
relationships. 23 Pa.C.S.A. § 5421(a)(2). The trial court’s analysis applies
only section 5423(1), and disregards section 5423(2), despite its disjunctive
language.
Further, the UCCJEA prioritizes home state jurisdiction. 23 Pa.C.S.A. §
5421. There is a clear preference under the UCCJEA for the “home state” of
the child to take jurisdiction over a modification request. 9 See T.A.M. v.
S.L.M., 104 A.3d 30 (Pa. Super. 2014) (trial court had jurisdiction to modify
custody determination made by Tennessee court granting maternal
grandmother custody of child; child had been living with maternal
grandmother in Pennsylvania for three years, Pennsylvania was home state
under UCCJEA, no parent or person acting as parent still resided in
Tennessee, and mother had not been heard from in three years); see also
R.M. v. J.S., 20 A.3d 496 (Pa. Super. 2011) (child’s home state is preferred
basis for determining jurisdiction under UCCJEA).
Additionally, we point out that the Prefatory Note to the UCCJEA states
that the UCCJEA has addressed the problem of simultaneous proceedings
and conflicting custody orders in sections 5410, 5422 and 5426. See 23
____________________________________________
9
We recognize that in some cases the “home state” may not be the most
appropriate forum. See Dincer v. Dincer, 701 A.2d 210 (Pa. 1997).
- 11 -
J-A07030-15
Pa.C.S.A. §§ 5401-5482-Prefatory Note, 3. We find that the trial court’s
reading of the various sections of the UCCJEA has hamstrung its ability to
grant relief. Rather than prioritizing the home state pursuant to section
5421, the court incorrectly prioritized section 5422 (exclusive, continuing
jurisdiction). See 23 Pa.C.S.A. §§ 5421, 5422. We conclude that this was a
misapplication of the law and contrary to the purpose of the UCCJEA. See
23 Pa.C.S.A. § 5401.10 Cf. A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010)
(Child did not have significant connection with Pennsylvania, and thus Court
of Common Pleas did not have exclusive continuing jurisdiction under
UCCJEA to hear father’s petition to modify child custody order; child had not
____________________________________________
10
[T]his Act should be interpreted according to its purposes which are to:
(1) Avoid jurisdictional competition and conflict with court of
other states in matters of child custody which have in the
past resulted in the shifting of children state to state with
harmful effects on their well-being;
(2) Promote cooperation with the courts of other states to the
end that a custody decree is rendered in that state which
can best decide the case in the interest of the child;
(3) Discourage the use of the interstate system for continuing
controversies over child custody;
(4) Deter abductions of children;
(5) Avoid relitigation of custody decisions of other states; and
(6) Facilitate the enforcement of custody decrees of other
states.
23 Pa.C.S.A. § 5401, Uniform Law Comment.
- 12 -
J-A07030-15
resided in state for almost seven years, mother had resided in different state
for almost seven years, father had no contact with child after child left state,
and child’s physicians, school, friends, and family all were located in different
state).
In Rennie v. Rosenthol, 995 A.2d 1217 (Pa. Super. 2010), this Court
discussed exclusive, continuing jurisdiction pursuant to the UCCJEA:
The UCCJEA, 23 Pa.C.S.A. § 5401, et seq., was promulgated by
the National Conference of Commissioners on Uniform State
Laws in 1997 and became effective in Pennsylvania in 2004. The
UCCJEA replaced the Uniform Child Custody Jurisdiction Act
(“UCCJA”) as a way to rectify inconsistent case law and revise
custody jurisdiction in light of federal enactments. One of the
main purposes of the UCCJEA was to clarify the exclusive,
continuing jurisdiction for the state that entered the child
custody decree. See 23 Pa.C.S.A. § 5422, cmt.; see also
Bouzos–Reilly v. Reilly, 980 A.2d 643, 645 (Pa. Super. 2009).
****
Under the plain meaning of section 5422(a)(1), a court that
makes an initial custody determination retains exclusive,
continuing jurisdiction until neither the child nor the child and
one parent or a person acting as a parent have a significant
connection with [the original decree state] and substantial
evidence concerning the child's care, protection, training, and
personal relationships is no longer available [in the original
decree state].
Rennie, 995 A.2d at 1220–21 (emphasis added and footnotes omitted).
The Uniform Law Comment to section 5422 provides further guidance
and support for our conclusion. It states that “[t]he continuing jurisdiction
of the original decree state is exclusive[,] and [i]t continues until one of two
events occurs:
****
- 13 -
J-A07030-15
2. Continuing jurisdiction is lost when the child, the child’s
parents, and any person acting as a parent no longer resides
in the original decree state. The exact language of subsection
(a)(2) was the subject of considerable debate. Ultimately the
Conference settled on the phrase that “a court of this state
or a court of another state determines that the child,
the child’s parents, and any person acting as a parent
do not presently reside in this state” to determine
when the exclusive, continuing jurisdiction of a state
ended. . . . It is the intention of this Act that subsection
(a)(2) of this section means that the named persons no
longer continue to actually live within the state. Thus, unless
a modification proceeding has been commenced, when the
child, the parents, and all persons acting as parents physically
leave the state to live elsewhere, the exclusive, continuing
jurisdiction ceases. . . . . .[11] If the child, the parents,
and all persons acting as parents have all left the state
which made the custody determination prior to the
commencement of the modification proceeding,
considerations of waste of resources dictate that a
court in state B, as well as a court in state A, can
decide that state A has lost exclusive, continuing
jurisdiction.
23 Pa.C.S.A. § 5422, Uniform Law Comment (emphasis added).
Here, the modification proceeding was commenced in Lawrence
County, after the parties and the children no longer resided in Ohio, the
original decree state. Mother had resided in the Commonwealth for at least
six months prior to filing her motion to modify custody. Based on these
undisputed facts, Ohio no longer has exclusive, continuing jurisdiction over
____________________________________________
11
To clarify, if a modification proceeding had been commenced in Ohio
before the parties and children moved to Pennsylvania, exclusive, continuing
jurisdiction would NOT have ceased in Ohio. Here, the modification
proceeding commenced after the parties and children had moved to
Pennsylvania and Mother had resided in the Commonwealth for at least six
months prior to filing the motion to modify.
- 14 -
J-A07030-15
this child custody matter pursuant to the UCCJEA and is no longer able to
enter any custody orders in this case. Pennsylvania meets the criteria for
jurisdiction and, therefore, we reverse and remand this case for a
determination on the merits of Mother’s motion for modification.12
With respect to Mother’s final three issues concerning the propriety of
the court’s order granting Father’s petition for counsel fees, we agree with
Mother that her filing of three petitions in these circumstances is not
“repetitive” within the meaning of 23 Pa.C.S.A. § 5339. Our standard of
review of an award of counsel fees is well settled: we will not disturb a trial
court’s determination absent an abuse of discretion. Verholek v.
Verholek, 741 A.2d 792, 795 (Pa. Super. 1999). A trial court has abused
its discretion if it failed to follow proper legal procedures or misapplied the
law. Id. See also Thunberg v. Strause, 682 A.2d 295 (Pa. 1996)
(appellate court’s scope of review in cases involving counsel fees is limited to
determining whether trial court abused its discretion).
Section 5339 provides the authority for the award of counsel fees and
costs in custody matters, not only in cases of contempt, but also in cases
where a party’s conduct is “obdurate, vexatious, repetitive or in bad faith.”
23 Pa.C.S.A. § 5339. Section 5339 states:
____________________________________________
12
Because we agree with Mother’s claims in issues 1 and 2, we find it
unnecessary to address issues 3, 4 and 7.
- 15 -
J-A07030-15
Under this chapter, a court may award reasonable interim or
final counsel fees, costs and expenses to a party if the court
finds that the conduct of another party was obdurate, vexatious,
repetitive or in bad faith.
23 Pa.C.S.A. § 5339 (emphasis added). As this Court noted in Chen,
supra, this language is essentially identical to the language in sections
2503(7) and (9) of the Judicial Code, which allows an award of counsel fees
under the following circumstances:
(7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.
(9) Any participant who is awarded counsel fees because the
conduct of another party in commencing the matter or otherwise
was arbitrary, vexatious or in bad faith.
42 Pa.C.S.A. §§ 2503(7), (9). “The distinction between section 5339 of the
Domestic Relations Code and section 2503 of the Judicial Code is simply the
addition of the word ``repetitive.’” Chen, 100 A.3d at 591.
Here, the trial court awarded Father counsel fees based on its
conclusion that Mother’s filings were “repetitive” within the meaning of
section 5339. The trial court states that this conclusion is supported by “the
record developed in the instant case, in addition to the Opinion issued by the
Cuyahoga County Court[.]” Trial Court Opinion, supra at 11. We disagree.
As indicated above, Mother filed her first motion for modification in
May 2014, after the Lawrence County Court registered the Ohio decree. Her
second motion, filed one month later, after the court declined to exercise
jurisdiction, sought special relief in the form of emergency jurisdiction based
- 16 -
J-A07030-15
on W.S.’s injuries. Father filed a petition for counsel fees claiming Mother’s
actions were “vexatious.” The trial court denied Father’s petition. Four
months later, on October 21, 2014, Mother filed another petition for special
relief, claiming W.S. had returned home to her with new bruises on his
buttocks and thigh. Mother also reiterated her request that the court
exercise emergency jurisdiction. Father filed a petition for counsel fees,
claiming Mother’s motions were vexatious and repetitive, and the trial court
granted Father’s request.
The court, in its order, pointed out that that the circumstances did not
warrant its exercise of emergency jurisdiction, and that it had “previously on
two occasions declined to accept jurisdiction under the UCCJEA, in that the
Court of Common Pleas of Cuyahoga County, Ohio, has not relinquished
jurisdiction to this Court.” Order, 10/21/14, at 2. The court, therefore,
granted Father’s petition for counsel fees “based upon [Mother’s] repetitive
filings pursuant to 23 Pa.C.S.A. [§] 5339[.]”
A suit is “vexatious,” such as would support an award of counsel fees
in a child custody case, if it is brought without legal or factual grounds and if
the action served the sole purpose of causing annoyance. In re the Barnes
Foundation, 74 A.3d 129 (Pa. Super. 2013) (interpreting 42 Pa.C.S.A. §
2503(7)). Here, because the trial court’s orders declining jurisdiction are in
error, and those orders provided, in part, the basis of the court’s order
granting counsel fees, we find it necessary to reverse that order. Further,
although repetition alone may be grounds for imposition of counsel fees, we
- 17 -
J-A07030-15
conclude that the circumstances here do not warrant an award. Chen,
supra. The award of counsel fees is not supported by the record.13
Order reversed. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
____________________________________________
13
Because we reverse the order granting counsel fees, we need not address
issue 5, where Mother claims Father violated local rules of procedure in filing
his petition for counsel fees.
- 18 -