V.L.S. v. S.C. ( 2014 )

J-A21023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
V.L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.C.
Appellee No. 661 EDA 2014
Appeal from the Order Entered January 30, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2009-11738
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V.L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.C.
Appellee No. 662 EDA 2014
Appeal from the Order Entered January 30, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2011-10287
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014
Common Pleas of Delaware County entered on January 30, 2014, that
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*
Retired Senior Judge assigned to the Superior Court.
J-A21023-14
denied his de novo appeal from the findings of the custody master dated
order dated October 18, 2011. After careful review, we affirm.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth
the factual and procedural history in this case, which the testimonial and
documentary evidence supports. As such, we adopt it herein. See Trial
Court Opinion, 3/24/14, at 2-4.
We summarize the relevant background, as follows. On June 16,
2011, Mother filed an emergency complaint in custody with respect to the
born in June of 1998.1 At the time, a custody proceeding between the
parties was pending in the Richland County Court of Common Pleas in South
Carolina, where Father then resided, and where the parties, in 2003, had
obtained a divorce decree that incorporated a custody agreement. See Trial
Court Opinion, 3/24/14, at 2. By order dated June 17, 2011, the trial court
the custody master. Id. Following communication between the respective
trial courts regarding subject matter jurisdiction, the Richland County Court
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1
In its Rule 1925(a) opinion, the trial court erroneously stated that Mother
filed the emergency complaint in custody on June 6, 2011.
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of Common Pleas issued an order on August 22, 2011,2 relinquishing
jurisdiction and transferring the matter to the Delaware County Court of
Id. at 3. The transfer order was
registered in the Delaware County Court of Common Pleas on May 14, 2012.
Id.
aforementioned petition and recommended that a temporary custody order
be entered awarding Mother sole legal and physical custody. See
Temporary Custody Order, 10/18/11. The trial court adopted the
Id.
On February 25, 2013, Father filed a petition to vacate the temporary
custody order. Father alleged that the Delaware County Court of Common
Pleas did not have jurisdiction to hold a hearing on any pleading filed by
Mother prior to the date of the transfer order. See Petition to Vacate, at ¶
11. As such, Father requested that the temporary custody order be vacated.
On April 9, 2
petition. On April 17, 2013, Father requested a hearing de novo. The trial
court held a hearing on January 2, 2014, during which Father represented
himself pro se, and Mother was represented by counsel. By order dated
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2
The order, a copy of which is included in the certified record, is dated
August 22, 2011, and time-stamped August 23, 2011.
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January 21, 2014, and entered on January 30, 2014, the trial court denied
de novo appeal from the findings of the master dated April 9, 2013,
October 18, 2011. Father filed timely notices of appeal and concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).3
On appeal, Father presents the following issues for our review:
A. Whether the Trial Court Erred and Committed an Abuse of
Discretion When it Entered its Order dated June 17, 2011
a Petition to Modify Custody When It Lacked Jurisdiction to do so
Under the UCCJEA and as such, the Resulting October 18, 2011
Order of Custody was Invalid[?]
B. Whether the Trial Court Erred and/or Committed an Abuse of
Discretion when it Found that the August 22, 2011 South
Carolina Order Transferring Jurisdiction was Effective Prior to the
Date that it was Registered as a Foreign Custody Order on May
14, 2012[?]
C. Whether the Trial Court Erred and/or Committed an Abuse of
Discretion When it Failed to Find That Mother and Her Counsel
Committed Fraud Upon The Court When They Failed to Advise
The Court In Their Emergency Petition For Custody Filed On June
16, 2011, that South Carolina Was Exercising Continuing and
Exclusive Jurisdiction of the Custody Matter Under The Uniform
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3
The record reveals that the underlying custody matter has two separate
docket numbers, which are not duplicative, and that the subject order was
filed under both docket numbers. As such, Father filed notices of appeal
under both docket numbers, which this Court consolidated sua sponte.
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D. Whether the Trial Court Erred and/or Committed an Abuse of
De Novo Appeal of the
October 18, 2011 Order[?]
In his first issue, Father argues that the trial court did not have
petition, filed as an emergency
complaint in custody, but deemed by the court as a petition to modify
pursuant to the jurisdictional criteria set forth in the Uniform Child Custody
-5482.
Specifically, Father acknowledges that the trial court had temporary
emergency jurisdiction pursuant to the UCCJEA, but he asserts that it did not
have jurisdiction over a petition to modify. See
Father argues that the June 17, 2011 order scheduling the matter as a
petition to modify before the custody master was a nullity, as was the
resulting temporary custody order. Id. at 16-17. In his second related
issue, Father argues that the temporary custody order was likewise a nullity
the transfer order was registered in the trial court on May 14, 2012.
as follows:
n 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
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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) (citation
omitted).
Upon careful review, we discern no abuse of discretion by the trial
Therefore, we adopt s Rule 1925(a) opinion as dispositive of
See Trial Court Opinion, 3/24/14, at 7-9.
abused its discretion by failing to find that Mother and her counsel
committed fraud upon the court by not including in the emergency complaint
a provision concerning the pending custody action in the Richland County
Court of Common Pleas. Upon careful review, we discern no abuse of
discretion by the court in failing to find fraud in this regard. We likewise
adopt as dispositive of the arguments
advanced by Father in support of the third issue raised in this appeal. See
Trial Court Opinion, 3/24/14, at 9-10, 12-13.
In his final issue, Father argues that the trial court erred and abused
its discretion in failing to provide him with a full and fair hearing de novo on
January 2, 2014. Specifically, Father asserts he did not receive a proper
hearing de novo because (1) the proceeding was conducted as a colloquy
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of errors complained of on
appeal includes ten paragraphs, only one of which is similar, but not
identical, to the fourth issue in the Statement of Questions Involved in his
8. Whether the trial court erred as a matter of law and
de
novo appeal from the [f]indings of [the custody master] dated
April 9, 2013?
Rule 1925(b) statement, 2/25/14, at ¶ 8. This asserted error is a boilerplate
claim that the court erred in denying his de novo appeal and thereby
4
As such, we conclude that
Father has not preserved any claim that the trial court did not provide him
with a full and fair de novo hearing.5 Therefore, Father has waived this
argument on appeal. See Dietrich v. Dietrich, 923 A.2d 461, 463 (Pa.
Super. 2007) (stating that when an appellant filed a Rule 1925(b)
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4
In its Rule 1925(a) opinion, the trial court responded to this assertion by
incorporating its discussion of subject matter jurisdiction previously set forth
in its opinion. See Trial Court Opinion, 3/24/14, at 7-9, 13-14.
5
Even if this claim had been preserved, based upon our review of the
record, we would conclude that the issue is meritless.
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statement, any issues not raised in that statement are waived on appeal);
see also Krebs, supra (same). Accordingly, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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