Hill, M. v. Canty, M. ( 2021 )

J-A14005-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL HILL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MONIQUE-RENEE CANTY : No. 198 WDA 2021
Appeal from the Order Entered January 27, 2021
In the Court of Common Pleas of Allegheny County
Family Division at No: FD 19-003580-005
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: AUGUST 17, 2021
Michael Hill (Father) appeals from the order finding lack of subject
matter jurisdiction over Father’s child custody modification action pursuant to
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23
Pa.C.S.A. §§ 5401-5482.1 We affirm.
The trial court summarized the factual and procedural history as follows:
[Father and Monique-Renee Canty (Mother)] are the natural
parents of one minor child, M.C.H. (DOB: 07/29/2016), the “minor
child,” who is presently in Mother’s sole legal and physical custody
____________________________________________
1 The UCCJEA governs subject matter jurisdiction between different states in
custody matters. J.C. v. K.C., 179 A.3d 1124, 1127 (Pa. Super. 2018); see
also T.D. v. M.H., 219 A.3d 1190, 1194 (Pa. Super. 2019) (“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. One of the main purposes of the UCCJEA was to clarify the
exclusive, continuing jurisdiction for the state that entered the child custody
decree.” (emphasis added; citations and quotations omitted)).
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[in Massachusetts]. Mother also has another son from a previous
relationship, MCS, born in 2007.
The parties began dating long-distance in January 2011. In
2014, Mother lived in Massachusetts and travelled for work, and
Father lived in Pittsburgh and also travelled for work. The parties
would spend time with one another in both Massachusetts and
Pennsylvania, but were often “ships passing in the night.” In
2014, Mother purchased a condominium in Allegheny County at
2467 Brook Ledge Road, Bridgeville, PA 15017 (“the Condo”) in
order to have a place for Mother and Father to stay when they
were both in Pittsburgh. Mother purposefully purchased a
condominium so that the property would be maintained while both
she and Father were traveling for work. Father utilized the Condo
as his sole residence beginning in 2015.
In April 2016, the parties ended their relationship while
Mother was pregnant with the minor child. Mother gave birth to
the minor child in Massachusetts with Father present, and shortly
after the parties attempted to reconcile, but they were
unsuccessful. In 2017, Mother obtained her current employment,
which requires her to report to a de facto office based within
Pennsylvania in order to service clients in the Pittsburgh area. To
satisfy that requirement, she chose to use the Condo address as
her mailing and paycheck address, although she continued to live
primarily in Massachusetts while Father resided in the Condo. In
June of 2017, Father continued to live in the Condo, but refused
to pay for any expenses related to the unit. Mother filed
paperwork to evict Father from the Condo, but Father refused to
vacate the premises until January 2018.
On May 3, 2018, Father filed a Custody Complaint for
the minor child in Essex County, Massachusetts. Father did
not serve Mother with the Complaint, and not knowing that Father
had already filed for custody, Mother also filed a Custody
Complaint for the minor child in Essex County on July 26, 2018.
In the summer of 2018, Mother was considering a relocation to
Pennsylvania in an attempt to have a successful coparenting
relationship with Father. In late August 2018, just one day prior
to the school year starting, Mother enrolled her older child, MCS,
into school in South Fayette School District[, located in Allegheny
County, Pennsylvania]. She decided that South Fayette School
District would be a better fit for MCS than his current school in
Massachusetts because of his disability, and that she would be in
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[the] Pittsburgh area often enough to ensure his attendance, as
many of her banking clients were in the Pittsburgh area. In
October 2018, soon after Mother enrolled MCS in South Fayette,
Mother decided not to relocate to Pennsylvania after all. MCS
continued to attend South Fayette School District, and he would
stay at Mother’s friend’s house when Mother was in
Massachusetts.
On January 25, 2019, the Essex County Courts dismissed
Father’s Custody Complaint due to lack of service, and on April
11, 2019, the Essex County Courts determined that they had
jurisdiction over custody of the [minor] child and granted
Mother sole legal and physical custody of the minor child.
On July 20, 2020, Father filed a petition for
modification [of custody of the minor child] in Allegheny
County. That petition resulted in the scheduling of a hearing on
jurisdiction, which was conducted . . . via video conference on
December 18, 2020, with Mother participating in the hearing by
telephone from her home in Massachusetts.
Trial Court Opinion, 3/1/21, at 1-3 (emphasis added; some capitalization
omitted).
By order entered January 27, 2021, the trial court denied Father’s
petition for modification, stating:
[T]he Commonwealth of Massachusetts retains continuing,
exclusive jurisdiction over custody of the minor child within the
meaning of the UCCJEA, and accordingly this Court hereby
RELINQUISHES jurisdiction over the above-referenced action in
favor of the courts of Massachusetts.
Order, 1/27/21 (capitalization in original).
Father timely filed a notice of appeal, contemporaneously with a concise
statement of errors complained of pursuant to Pa.R.A.P. 1925(a)(2)(i). The
trial court filed a responsive Rule 1925(a) opinion.
Father presents two issues for review:
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1. Did the trial court commit an abuse of discretion or an error of
law in failing to find that the testimony given at trial established
that the child had lived in Pennsylvania for more than six
months preceding the filing of Father’s Petition to Modify?
2. Did the trial court commit an abuse of discretion or an error of
law in failing to find that Pennsylvania has jurisdiction for
purposes of modifying the custody order in this case?
Father’s Brief at 2.
“We review a trial court’s decision to exercise or decline subject matter
jurisdiction for an abuse of discretion.” J.C., 179 A.3d at 1127; see also
Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005) (A court’s decision
to exercise or decline jurisdiction under the UCCJEA will not be disturbed
absent an abuse of discretion, which “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.” (citation omitted)); id. (“An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law or failed to follow
proper legal procedures.” (citation omitted)).
Section 5241 of the UCCJEA provides that a court has jurisdiction to
make an “initial child custody determination” if:
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.
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23 Pa.C.S.A. § 5421(a)(1) (emphasis added); see also id. § 5421(a)(2)
(enumerating certain other grounds where a court may make an initial custody
determination). The UCCJEA defines “home state” as “[t]he 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,” including any “period of temporary absence[.]” Id. § 5402.
Further, UCCJEA § 5422(a) provides:
Except as otherwise provided in section 5424 (relating to
temporary emergency jurisdiction), a court of this Commonwealth
which has made a child custody determination consistent with
section 5421 (relating to initial child custody jurisdiction) or 5423
(relating to jurisdiction to modify determination) has exclusive,
continuing jurisdiction over the determination until:
(1) a court of this Commonwealth determines that
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.A. § 5422(a); see also see also T.D., 219 A.3d at 1195 (“Section
5422 is written in the disjunctive, and, therefore, ...the trial court [i]s required
only to determine whether the child[] fail[s] one of the jurisdictional tests set
forth in Section 5422(a).” (citation omitted)).
Finally, UCCJEA § 5423 provides:
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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.
We address Father’s two issues together, as they both assert the trial
court abused its discretion in finding Pennsylvania lacked jurisdiction under
the UCCJEA. Father initially argues Massachusetts is no longer the minor
child’s “home state.” Father’s Brief at 11 (citing 23 Pa.C.S.A. § 5421); see
also id. at 19 (alleging “Pennsylvania became [the minor] child’s home state
in 2018 when he and Mother lived in Pennsylvania for ten months.”). Father
asserts (a) Mother purchased the Condo in 2014, still resides there, and is
“falsely claiming to live in Massachusetts”; (b) Mother’s older child, MCS, has
attended school in Allegheny County since 2018; (c) “[i]n 2018, Mother filed
a tax return, and while listing a Massachusetts address, she claimed childcare
costs of $3,400 paid to a facility in Oakdale, Pennsylvania”; (d) in June 2019,
Mother filed for child support on behalf of the minor child in Allegheny County;
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and (e) “[a]ll of Mother’s pay stubs from her employer from 2017 to present
are addressed to the [Condo.]” Id. at 3-5; see also id. at 13 (“A petition for
Protection From Abuse filed [with] the Court of Common Pleas of Allegheny
County, PA on December 10, 2019, listed Mother’s address at [the Condo.”).
Father contends the trial court had jurisdiction to (a) make an initial child
custody determination under UCCJEA § 5421(a)(1), supra; and (b) modify
the existing Massachusetts custody order under § 5423(2), supra. Id. at 19-
20. Finally, Father argues “the mere fact that Mother might be spending time
in Massachusetts under this unprecedented [COVID-19] crisis is not
independently sufficient to confer jurisdiction on Massachusetts for custody
purposes.” Id. at 30.
In rejecting Father’s challenge, the trial court determined:
[T]he minor child and Mother retained substantial
connections to [Massachusetts] in the forms of ongoing residency,
familial ties, and medical treatment (see N.T., 12/18/20, at 31-
59); and [the trial court] found no credible bases upon which to
assert any form of Emergency Jurisdiction under 23 Pa.C.S.A. §
5424.
From the evidence and testimony adduced at the [December
18, 2020 h]earing, the [trial court] concluded that the parties’
custody complaint was already the subject of a custody action
over which the Commonwealth of Massachusetts retains
continuing and exclusive jurisdiction. By filing competing
custody complaints in Massachusetts in 2018, both of the
parties had already consented to the exercise of
jurisdiction by Massachusetts courts. It seems rather clear
that having had his Massachusetts custody case dismissed while
Mother was awarded sole legal and physical custody of the minor
child by the Massachusetts court, Father is now shopping for a
better forum in which to get a different result.
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Understandable as that desire may be, it does not by itself confer
jurisdiction upon Pennsylvania Courts.
The UCCJEA provisions setting forth a six-month period for
the establishment of a minor child’s “home state” [(i.e., 23
Pa.C.S.A. § 5421(a) and § 5402)] relate to situations in which
proper jurisdiction has not already been established. But
that is not the case here. The Massachusetts court was clearly
aware of Mother’s complicated residential situation, and yet it did
not deem that to be any impediment to awarding Mother sole legal
and physical custody of the minor child. In the absence of any
material change in facts or circumstances, the [trial court]
was not persuaded that Father had set forth any legitimate basis
upon which to wrest jurisdiction away from Massachusetts, or
even to confer with the Massachusetts court regarding its potential
willingness to relinquish jurisdiction (as would have been done
immediately had the court detected any legitimate basis for
asserting jurisdiction here).
***
[T]he testimony given at trial established that the minor
child’s connections to the Commonwealth of Pennsylvania
have more to do with the educational and medical needs of
his older half-brother than anything else, and that Mother has
no future plans to expand her limited connections with
Pennsylvania in any way not already contemplated by the
Massachusetts custody order. See N.T., 12/18/20, at 54-59. The
issue of the minor child’s six-month residency in Pennsylvania [in
2018], while germane, was neither clear nor dispositive.
Trial Court Opinion, 3/1/21, at 3-4, 5 (emphasis added; record citations
modified).
In his challenge to the trial court’s conclusions, Father seeks to have
this Court re-weigh evidence and/or re-assess credibility to give more
credence to Father’s proposed evidence of residency, much of which concerns
MCS’s contacts with Pennsylvania, not the minor child’s. However, it is well-
settled that this Court cannot disturb a trial court’s findings of fact and
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determinations regarding credibility and weight of the evidence absent a
finding that the trial court abused its discretion, see C.R.F. v. S.E.F., 45 A.3d
441, 443 (Pa. Super. 2012), which did not occur in this case.
Upon review, we find competent evidence of record to support the trial
court’s determination that it lacked jurisdiction. The Commonwealth of
Massachusetts, not Pennsylvania, had jurisdiction to make the initial child
custody determination. See, e.g., 23 Pa.C.S.A. § 5423(a) (“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”)); see also T.D., 219 A.3d at 1196 (the original decree
state is the sole determinant of whether jurisdiction continues.”). Indeed,
Father accepted Massachusetts’ jurisdiction by filing a custody complaint there
in May 2018. Further, the trial court correctly found Massachusetts retains
exclusive, continuing jurisdiction, pursuant to the UCCJEA. See Rennie v.
Rosenthol, 995 A.2d 1217, 1221 (Pa. Super. 2010) (a state has exclusive,
continuing jurisdiction under § 5422(a) of UCCJEA “as long as the child and at
least one parent have an important or meaningful relationship” to the state).
Contrary to Father’s claim, both the minor child and Mother have
significant contacts with Massachusetts. Evidence was presented that (a) the
minor child has resided in Massachusetts for essentially his entire life, aside
from a few months in 2018; and (b) Mother is domiciled in Massachusetts,
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occasionally travels to Pennsylvania, and has only tangential work contacts
with Pennsylvania. See N.T., 12/18/20, at 31-34, 42-50, 54-55. Father’s
argument under UCCJEA § 5241 regarding the minor child’s purported home
state lacks merit. Finally, Father’s claim that the trial court should have
applied the provisions of UCCJEA § 5427, governing inconvenient forum, is
unavailing. See Father’s Brief at 23-27. Those provisions were not implicated
because only Massachusetts has jurisdiction.
In sum, we discern no abuse of the trial court’s discretion. See
Wagner, 887 A.2d at 290-91 (reversing trial court’s acceptance of jurisdiction
under the UCCJEA where the State of Florida had substantial contacts with the
subject children and mother, and stating “Pennsylvania lacks ‘significant
connections’ that would justify an exercise of its jurisdiction under the
UCCJEA, see 23 Pa.C.S.A. § 5421(a)(2)(i),” where father occasionally took
the children on trips to Pennsylvania to visit extended family and mother
previously lived in Pennsylvania when deployed by the military); Rennie, 995
A.2d at 1222-23 (trial court correctly rejected mother’s claim that
Pennsylvania should have relinquished jurisdiction to the State of Minnesota
under the UCCJEA, where child had significant contacts with Pennsylvania);
cf. T.D., 219 A.3d at 1198 (reversing trial court’s transfer of jurisdiction to
the State of Delaware under UCCJEA § 5422 where the Pennsylvania
considered the original custody complaint and issued a custody order).
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Accordingly, we affirm the order relinquishing jurisdiction to
Massachusetts. If Father believes Massachusetts is improperly exercising
jurisdiction over the custody action, he is free to petition the Massachusetts
courts.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2021
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