B.A. v. A.S.P. ( 2015 )

J-A19022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.S.P.
Appellant No. 1743 WDA 2014
Appeal from the Order Entered September 23, 2014
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2014-1197-CD
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 21, 2015
B.A. (“Father”) and A.S.P. (“Mother”) are involved in a bitter custody
dispute concerning their young child, B.A.A. (“Child”). The litigation chiefly
is in North Carolina, although litigation has twice spilled over into
Pennsylvania.
This appeal involves the second proceeding in Pennsylvania. Father
filed petitions in the Court of Common Pleas of Clearfield County requesting
registration and enforcement of an emergency custody order and an interim
custody order issued by Alamance County Court in North Carolina (“North
Carolina court”). The Clearfield County court scheduled a hearing, but
Father withdrew all requests for relief. Mother thereupon petitioned the
Clearfield County court to proceed with the hearing for the purpose of
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sanctioning Father. The Clearfield County court dismissed Mother’s petition,
and Mother appealed to this Court. We affirm.
The record reflects that Child was born in North Carolina in 2008. In
2009, following the termination of Mother’s and Father’s relationship, Mother
moved to Pennsylvania with Child. Father commenced custody proceedings
in North Carolina court. On August 23, 2011, the North Carolina court
entered an order awarding primary physical custody/placement of B.A.A. to
Mother subject to Father’s periods of partial custody. On June 19, 2012,
Mother filed a motion in the North Carolina court to transfer jurisdiction of
the custody case to Pennsylvania. On March 20, 2013, the North Carolina
court denied Mother’s motion and retained exclusive jurisdiction over the
child custody case.
On January 17, 2014, Mother filed Protection from Abuse (“PFA”) and
emergency custody petitions in Clearfield County alleging that Father
physically, mentally and emotionally abused Child. Mother requested an
emergency order suspending Father’s periods of partial custody pending final
disposition of the emergency petition. The Clearfield County court granted
Mother’s petitions and entered an interim custody order in Mother’s favor
assuming temporary emergency jurisdiction in accordance with the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).1 This interim
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1
23 Pa.C.S. § 5401 et seq.
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order suspended Father’s periods of partial custody pending a hearing in
Clearfield County.
On January 31, 2014, Mother filed a motion to transfer jurisdiction to
Pennsylvania, relying heavily on the allegations in her PFA and emergency
custody petitions.
On February 3, 2014, counsel for the parties agreed that jurisdiction
rested properly in North Carolina with respect to the transfer motion, and
the Clearfield County court found the same with respect to Mother’s PFA and
emergency custody petitions. The court entered orders transferring all
matters to North Carolina for hearings.
The North Carolina court scheduled trial on Mother’s PFA and
emergency custody petitions for March 4, 2014 and ordered Mother to
appear in court with Child on that date. On March 4, 2014, Mother’s
attorney appeared in North Carolina court, but Mother and Child failed to
appear. On the same date, the North Carolina court conducted a hearing
relating to Mother’s PFA and emergency custody petitions. Mother presented
no evidence in support of her PFA and emergency custody petition.
Ultimately, following numerous recorded telephonic conferences between the
North Carolina and Clearfield County courts, which included testimony from
witnesses with counsel for both parties present to conduct direct and cross
examination, Mother withdrew both of her emergency petitions.
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On April 3, 2014, following a hearing, the North Carolina court denied
Mother’s motion to transfer jurisdiction to Pennsylvania. Mother appealed to
the North Carolina Court of Appeals, which denied her appeal.
On July 29, 2014, the North Carolina court held a hearing on all
pending matters in the custody case and determined that Mother’s
allegations against Father were “fabricated, and appeared to have been
falsely made for the express purpose of suspending Father’s visitation …
[which] have greatly prejudiced the father causing great expense and
burden.” The North Carolina court found that “these abuse allegations are
false … they did not happen and were made up.” The North Carolina court
found that these allegations were not in Child’s best interest, because they
kept him away from Father for an extended period of time, and Mother’s
conduct in fabricating these allegations was detrimental to Child. On August
1, 2014, the North Carolina court issued emergency and interim custody
orders granting primary custody to Father and ordering Mother to relinquish
Child to Father.2
On August 8, 2014, Father commenced the proceeding presently on
appeal by petitioning the Clearfield County court for registration of the
emergency and interim custody orders under the UCCJEA. On the same
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2
Ultimately, on September 26, 2014, the North Carolina court entered a
final order awarding Father primary physical custody of Child and ordering
Mother to undergo psychiatric evaluation due to her misconduct.
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date, the Clearfield County court entered an order directing the Clearfield
County prothonotary to register the emergency and interim custody orders.
On August 12, 2014, Mother cross-petitioned the Clearfield County
court for a hearing on Father's petition to register the orders. The Clearfield
County court issued a rule upon Father to show cause why Mother's petition
for a hearing should not be granted. On August 15, 2014, Mother filed a
second cross-petition for reconsideration and stay of registration of the
emergency and interim custody orders. The Clearfield County court granted
Mother's petition for a stay.
On August 22, 2014, Father filed a second petition in Clearfield County
for registration of the emergency and interim custody orders. On August 28,
2014, Father filed a petition for expedited enforcement of foreign child
custody orders under the UCCJEA. Later that day, however, Father withdrew
all petitions for relief, because he had found Child3 and taken Child back to
North Carolina.
On September 2, 2014, Mother filed a petition to reinstate the hearing
on Father’s registration of the North Carolina emergency and interim custody
orders. Mother alleged that Father violated the UCCJEA by “absconding”
with Child to North Carolina and asked the Clearfield County court to impose
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According to Father, Child’s paternal grandmother helped him locate Child
in Pennsylvania despite Mother’s attempt to hide Child’s whereabouts.
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sanctions on Father. On September 23, 2014, the Clearfield County court
entered an order dismissing Mother’s petitions for lack of jurisdiction.
Mother filed a timely notice of appeal from the September 23, 2014
order, and both Mother and the Clearfield County court have complied with
Pa.R.A.P. 1925.
Mother raises two issues in this appeal:
1. Whether the trial court erred by enforcing an out-
of-state custody order without placing a stay on the
enforcement of the order until such time as a
hearing could be held to determine the validity of the
order.
2. Whether the trial court erred by not holding
[Father] responsible for removing the minor child
from the Commonwealth of Pennsylvania using an
out of state custody order as authority.
Brief For Appellant, p. 4.
The UCCJEA “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.” B.J.D. v. D.L.C., 19
A.3d 1081, 1082 (Pa.Super.2011).
The record demonstrates that North Carolina is the main forum for this
child custody dispute, and there have only been two brief episodes of
litigation in Pennsylvania. In the first episode, Mother filed PFA and
emergency custody petitions in Clearfield County accusing Father of child
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abuse, accusations she later withdrew in North Carolina. The second
episode, which underlies the present appeal, began when Father filed
petitions in Clearfield County requesting registration of interim and
emergency custody orders entered in North Carolina and seeking their
expedited enforcement. Mother countered with petitions opposing
registration of the North Carolina interim and emergency orders and seeking
a stay. The Clearfield County court stayed registration of the North Carolina
orders and scheduled a hearing, but Father withdrew his petitions upon
finding Child and taking Child back to North Carolina. Mother then filed a
petition requesting that the Clearfield County court reinstate the hearing to
sanction Father for taking Child back to North Carolina. The Clearfield
County court denied Mother’s petition.
Mother’s first argument in this appeal is that the Clearfield County
court “erred by enforcing an out-of-state custody order without placing a
stay on the enforcement of the order until such time as a hearing could be
held to determine the validity of the order.” We disagree. The Clearfield
County court indeed stayed enforcement of the North Carolina orders upon
receipt of Mother’s petition for reconsideration and stay of Father’s petition
for registration. The entire matter, including the stay, became moot when
Father withdrew his petitions to register and enforce the North Carolina
orders. In Re S.H., 71 A.3d 973, 976 (Pa.Super.2013) (“if events occur to
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eliminate [a] claim or controversy at any stage in the process, the case
becomes moot”).
Mother’s second argument is that the Clearfield County court erred by
not sanctioning Father for removing Child from Pennsylvania on the basis of
the North Carolina orders. The Clearfield County court properly declined
jurisdiction over this issue. A court's decision to exercise or decline
jurisdiction under the UCCJEA is subject to an abuse of discretion standard
of review. Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super.2005). One
of the UCCJEA’s guiding principles is that the court that makes an initial
custody determination retains exclusive, continuing jurisdiction over the
dispute.4 B.J.D., 19 A.3d at 1083. Here, in 2011, the North Carolina court
made the initial custody determination granting primary custody to Mother.
In August 2014, however, the North Carolina court entered interim and
emergency orders transferring primary custody to Father. The North
Carolina court, not the Clearfield County court, had exclusive jurisdiction
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4
This principle is subject to various exceptions. For example, under
Pennsylvania’s version of the UCCJEA, the court that makes the initial
custody determination loses jurisdiction when “(1) neither the child, nor the
child and one parent, nor the child and a person acting as a parent have a
significant connection with this Commonwealth and that substantial evidence
is no longer available in this Commonwealth concerning the child's care,
protection, training and personal relationships; or (2) a court of this
Commonwealth 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 Commonwealth.” 23 Pa.C.S. § 5422(a). North Carolina’s version of the
UCCJEA includes a provision identical in substance. See N.C.G.S. § 50A-
202.
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under the UCCJEA to decide whether Father had the right to remove Child
from Pennsylvania on the basis of the North Carolina court’s interim and
emergency orders. Had the Clearfield County court granted Mother’s
entreaty to hold a hearing and sanction Father, it would have infringed the
North Carolina court’s jurisdiction over this child custody dispute.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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