R.B.H. v. L.H.-H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.B.H., : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
:
v. :
:
:
L.H.-H. :
:
Appellant : No. 881 MDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2009-CV-09619-DC
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 08, 2017
L.H.-H. (Mother) appeals from the order entered May 10, 2017, in the
Court of Common Pleas of Dauphin County, which denied her petition to
transfer venue to Lebanon County in this child custody matter. Because the
issues presented by Mother are not ripe for our consideration, we affirm.1
We summarize the relevant factual and procedural history of this matter
as follows. E.A.H. (Child) was born in May 2009, during the marriage of
Mother and R.B.H. (Father). The parties separated only a few months after
Child’s birth, and on August 3, 2009, Father commenced custody proceedings
by filing a combined complaint in divorce and petition for custody in Dauphin
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* Retired Senior Judge assigned to the Superior Court.
1An appellate court may affirm the trial court on any basis if the result is
correct. P.J.A. v. H.C.N., 156 A.3d 284, 293 n.6 (Pa. Super. 2017).
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County, where Mother, Father, and Child resided at the time. Since August
2015, Father has exercised primary physical custody of Child during the school
year, with Mother exercising partial physical custody on alternating weekends.
Mother exercises primary physical custody of Child during the summer, with
Father exercising partial physical custody for two one-week periods during
July and August. The parties share legal custody.
Importantly, while this case has remained in Dauphin County
throughout its history, the record reveals that Child, Mother, and Father no
longer reside there. Both Mother and Father remained in Dauphin County
after their separation, until Mother moved to Luzerne County in 2010. Mother
returned to Dauphin County in 2013, but moved back to Luzerne County only
two years later, in 2015. Father moved to Lebanon County in 2014, and has
resided there ever since.
In 2016, Mother filed an action in Lebanon County seeking primary
custody of Child, but later withdrew it. Thereafter, in Dauphin County, Father
filed a petition for contempt and to modify the prior custody orders. Mother
and Father participated in custody conciliation, and the trial court entered an
agreed-upon order on January 17, 2017, making minor modifications to the
prior custody orders and preserving Father’s right to pursue his contempt
allegations.
On February 8, 2017, Mother filed a petition to transfer venue, in which
she requested that the matter be transferred from Dauphin County to Lebanon
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County, where Father resides and Child spends most of her time pursuant to
the custody arrangement. The Honorable Jeannine Turgeon conducted a
hearing on Mother’s petition on March 20, 2017. On May 10, 2017, the court
entered an agreed-upon custody order, in which it merged the parties’ various
prior custody orders and parenting plans into a single document. 2 The trial
court entered a separate order that same day, denying Mother’s petition to
transfer venue. Mother timely filed a notice of appeal on June 1, 2017.3
On appeal, Mother argues that the trial court erred by denying her
petition to transfer venue pursuant to Pa.R.Civ.P. 1915.2 and Section 5422 of
the UCCJEA. Mother’s Brief at 7-12. Mother points out that she lives in
Luzerne County, while Child lives primarily with Father in Lebanon County.
Id. at 5, 9-12. Mother contends Child’s only connection to Dauphin County is
that Child’s pediatrician and dentist are located there. Id. at 11. Mother also
argues that the trial court erred by conducting an inconvenient forum analysis,
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2 According to the trial court, this order arose after the parties and their
counsel attempted to resolve Mother’s petition to transfer venue at the trial
court’s suggestion. Mother and Father were unable to agree upon the
appropriate venue, but decided to consolidate the prior orders and parenting
plans.
3 Mother violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise statement
of errors complained of on appeal at the same time as her notice of appeal.
We have accepted Mother’s concise statement pursuant to In re K.T.E.L., 983
A.2d 745, 748 (Pa. Super. 2009) (holding that the appellant’s failure to comply
strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims, as
there was no prejudice to any party).
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because a court may not conduct such an analysis without first having proper
venue. Id. at 7, 13.
In its July 21, 2017 opinion, the trial court provided the following
rationale for its order denying Mother’s petition to transfer venue.
I denied Mother’s petition arguing improper venue here and
seeking transfer to Lebanon County in order to retain the case in
Dauphin County for the purpose of continuity and judicial
economy, particularly since the parties had an extensive litigation
history here concerning their family issues, including custody. In
addition, there were no current issues pending or hearings
scheduled on any issues at the time Mother filed her
petition such that transfer seemed entirely unnecessary.
Finally, as Father’s attorney argued at the hearing, the January
17, 2017 agreed[-upon] custody order included a provision that
specifically preserved Father’s contempt allegations against
Mother (filed 11/18/16) if he sought to pursue them in the
future.[4] Mother made no objection to the preservation provision
including a venue objection. As such, Dauphin County maintains
venue over the preserved contempt allegations.
Trial Court Opinion, 7/21/2017, at 4 (citations omitted; emphasis added).
As the trial court and Father point out, at the time Mother filed her
petition to transfer venue, there were no custody matters pending, and
therefore, no matters that required the court to determine which county had
venue. Id.; Father’s Response to Petition to Transfer Venue with New Matter,
2/15/2017, at ¶38; Father’s Brief at 11 n.5. Mother did not seek to modify
custody at the time she filed her petition to transfer venue. In fact, she
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4 Father’s preserved contempt allegations do not render this appeal
interlocutory. See Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005)
(explaining that a custody order will be deemed final even if the order provides
for future hearings upon petition by a party).
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averred that Lebanon County would be the most appropriate county to
“address future child custody issues.” Petition to Transfer Venue, 2/8/2017,
at ¶23(b) (emphasis added). See also N.T., 3/20/2017, at 29
(acknowledging that Mother was seeking a venue change for “any cases …
going forward”).
The ripeness doctrine is a prerequisite for a court to exercise judicial
review and examine the merits of a case. Treski v. Kemper Nat. Ins.
Companies, 674 A.2d 1106, 1113 (Pa. Super. 1996). To be ripe, an actual
case or controversy must exist at every stage of the judicial process. Id.“The basic rationale underlying the ripeness doctrine is to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in
abstract disagreements.” Philadelphia Entm't & Dev. Partners, L.P. v.
City of Philadelphia, 937 A.2d 385, 392 (Pa. 2007). The doctrine of ripeness
prevents courts from giving “answers to academic questions or render[ing]
advisory opinions, or mak[ing] decisions based on assertions as to
hypothetical events that might occur in the future.” Harcar v. Harcar, 982
A.2d 1230, 1240–41 (Pa. Super. 2009).
In Harcar, the father filed a contempt petition, seeking to hold the
mother in contempt of prior court orders that directed her to return to the
child to Beaver County, Pennsylvania. Id. at 1232. The trial court made a
finding of contempt, but declined to order the mother to return the child to
Beaver County because by that point, all parties lived in the country of Turkey.
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Id. at 1233. The court also determined that Beaver County was an
inconvenient forum and directed the parties to institute any further child
custody proceedings in the child’s new home country of Turkey. Id. Although
Father stated his intent to seek modification of the custody order once Mother
was held in contempt, on appeal, this Court vacated the portion of the order
regarding forum, reasoning that because “the issue of any future jurisdiction
was not presently before the trial court in Beaver County as part of Father’s
contempt petition, the question of the trial court’s future jurisdiction was not
ripe for the trial court’s decision.” Id. at 1240-41.
Given the procedural posture of the instant case, the issues presented
by Mother are not ripe for consideration. Without any custody matters
pending, the issue of which county would be the most appropriate venue is
premature and subject to change depending on the facts and circumstances
in existence at the time the trial court may be asked to rule upon a custody
matter. By filing a petition to transfer venue for any future custody
proceedings, Mother is seeking an advisory opinion. Therefore, we affirm the
trial court’s order declining to transfer venue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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