Torres, K. v. Torres, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATRINA A. TORRES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TREVOR TORRES : No. 831 EDA 2021
Appeal from the Order Entered March 25, 2021
In the Court of Common Pleas of Pike County Civil Division at No(s):
477-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 18, 2021
K.A.T. (“Mother”) appeals from the order relinquishing jurisdiction of
this custody matter to the State of New York. Mother argues, among other
things, that the court erred in applying Section 5422 of the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”)1 and in granting the
motion without conducting a hearing or allowing her an opportunity to
respond. We reverse the order and remand for further proceedings.
In April 2020, T.T. (“Father”) filed a motion in Pike County to adopt a
foreign custody order and petition to modify custody. He asked the court to
adopt the custody order entered in New York2 and grant him shared legal and
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* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S.A. § 5401, et al.
2 New York had relinquished its jurisdiction.
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partial physical custody of F.M.T. (“Child”). The court adopted the New York
custody order in May 2020 and scheduled a custody conference.
Approximately two months later, in July 2020, Father filed a petition for
contempt, alleging Mother failed to abide by the terms of the New York custody
order because she refused to permit Father to exercise his summer vacation
time. The court set the matter for a status conference. Mother responded with
a petition for modification of the custody order, requesting primary physical
custody and that Father’s visits be supervised. The court scheduled a custody
trial for November 2020.
In September 2020, Father filed an emergency petition for special relief
after an incident that resulted in Mother’s husband filing a petition for a
protection from abuse order against her. The court granted Father sole legal
and primary physical custody of Child. That same month, Mother filed her own
emergency petition for special relief, asking the court to restore the provisions
of the New York custody order pending the November trial. In October, the
parties entered an interim custody agreement under which they would share
legal custody of Child, Father would exercise primary physical custody, and
Mother would exercise scheduled visitations from Friday to Sunday on
alternating weekends. The custody trial was continued until February 2021.
In January 2021, Father filed a motion for continuance of the custody
trial because his spouse, a necessary witness, would be unavailable due to
military obligations. The court granted the motion and scheduled the trial for
April 2021. In February 2021, Mother filed a petition for contempt and special
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relief. On March 23, 2021, Father filed a motion to relinquish jurisdiction,
asserting Child’s residence had changed back to New York. Two days later,
and before Mother filed her response, the court granted the motion. Mother
filed a motion for reconsideration, which the trial court denied. Mother filed a
timely notice of appeal.
Mother raises the following issues:
a. Did the trial court commit an error of law in granting
[Father’s] Motion to Relinquish Jurisdiction in a child custody
matter pursuant to 23 Pa.C.S.A. § 5422 without first
providing [Mother] a hearing or opportunity to respond?
b. Did the trial court commit an error of law or abuse of
discretion in relinquishing jurisdiction in a child custody
matter pursuant to 23 Pa.C.S.A. § 5422 solely because the
home state of the minor child had changed or, as claimed in
the opinion of the trial court, because the [Father’s]
pleadings indicated that Appellant and minor child had no
significant connections in Pike County, Pennsylvania?
c. Did the trial court commit an error of law or abuse of
discretion by relinquishing jurisdiction where the party
moving for relinquishment had used contemptuous,
dilatory, vexatious and unlawful behavior to obtain the
change in status of the child's home state in an attempt to
divest the trial court of jurisdiction?
Mother’s Br. at 4-6.
Before we address Mother’s issues, we dispose of Father’s claim that
this appeal is moot because New York has issued a temporary order granting
Father temporary custody and suspending Mother’s visitations. He also states
the New York court held a hearing in May 2021 after which it determined that
an unspecified “Order granting sole custody to the father” would stand.
Father’s Br. at 13.
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“A case is ‘moot’ when a determination is sought on a matter which,
when rendered, cannot have any practical effect on the existing controversy.”
Commonwealth v. Nava, 966 A.2d 630, 632-33 (Pa.Super. 2009). There is
no evidence of record in this case – such as a copy of the docket – showing
the status of the litigation in New York. But even assuming Father’s description
of the orders he cites is accurate, he has not shown that the case is moot.
According to Father, New York issued a temporary custody order and
essentially determined to maintain the status quo. Father does not suggest
that New York has made a final custody determination or that any order from
this Court could have no practical effect.
We now turn to Mother’s issues and will consider her first two issues
together. Mother argues that the court erred in granting the petition to
relinquish jurisdiction without having a hearing or providing her an opportunity
to be heard. She disputes the court’s claim that a hearing was not required
because jurisdictional issues are to be resolved expeditiously and the record
supported the relinquishment. She notes that, as the custody hearing had
been continued, the record contained only pleadings, with no evidence. There
was only one joint hearing, which resulted in a stipulation. She further notes
the court did not cite any case to support its claim that jurisdictional issues
must be handle expeditiously, and the statutes it cites “have nothing to do
with the trial court’s claim that no notice is required prior to relinquishing
jurisdiction.” Mother’s Br. at 16. She notes that due process is required in
custody proceedings and that the fundamental requirement of due process is
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the opportunity to be heard at a meaningful time and in a meaningful manner.
Further, she states that notice and an opportunity to be heard are required
under the UCCJEA, as section 5427, addressing whether the forum is
inconvenient, requires that the court permit the parties to submit information
and consider all relevant factors. Further section 5422 governing
communications between courts, provides that parties must have an
opportunity to be heard before a court issues an order related to jurisdiction.3
In her second issue, Mother claims the court erred in applying Section
5422. She asserts that the court stated the custody order provided Father
with sole legal custody, but it provided for shared legal custody. Further,
Mother alleges she exercised her physical custody rights, which were on
alternate weekends, in Pennsylvania. She argues the court did not properly
interpret the statute because it failed to consider whether Child and Mother
had a significant connection to Pennsylvania, and instead focused on Father
and Child’s connection to the Commonwealth. Mother further notes that the
court cited the wrong standard of review—abuse of discretion. She argues that
under Section 5422, the court must determine whether it possesses
jurisdiction, a question over which the court has no discretion.
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3 Mother relies on an unpublished memorandum from this Court. Because the
memorandum was filed before May 1, 2019, neither the parties nor this Court
may rely on or cite it. 210 Pa. Code § 65.37 (providing non-precedential
decisions filed after May 1, 2019 may be cited for persuasive value and
memorandum decisions filed before May 1, 2019 may not be cited or relied
on by the court or the parties, except in limited circumstances inapplicable
here).
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“[A] Section 5422 determination implicates the subject matter
jurisdiction of the trial court,” and we apply a de novo standard of review and
our scope of review is plenary. S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa.Super.
2014).4
Pursuant to Section 5422 of the UCCJEA, if Pennsylvania made a child
custody determination it has “exclusive, continuing jurisdiction” over the
matter as long as there is a significant connection with Pennsylvania or
substantial evidence concerning the child is in the Commonwealth:
(a) General Rule.—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)[5] has exclusive,
continuing jurisdiction over the determination until:
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4 Where a court possesses jurisdiction, we review a court’s decision of whether
to exercise that jurisdiction for an abuse of discretion. S.K.C., 94 A.3d at 406.
Section 5422, however, implicates whether a court has subject matter
jurisdiction, not whether it will exercise jurisdiction and, therefore, the
standard of review is de novo. Id.5 Here, the state of New York issued the initial custody determination, and it
later made a determination that it no longer had exclusive, continuing
jurisdiction. The Pike County court adopted the New York order, at Father’s
request, and the parties then filed petitions to modify custody in Pike County.
See 23 Pa.C.S.A. § 5423 (providing a court may not modify a custody
determination made in another state unless Pennsylvania has jurisdiction to
make an initial custody determination and, among other thing the court that
issued the custody order determined it no longer had jurisdiction); 23
Pa.C.S.A. § 5421 (providing Pennsylvania has jurisdiction to make an initial
child custody determination only if it is the child’s home state on the date of
the commencement of the proceeding or was the home state of the child
(Footnote Continued Next Page)
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(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[.]
23 Pa.C.S.A. § 5422(a)(1). To determine whether a child and parent have a
significant connection to Pennsylvania, courts “must look at the nature and
quality of the child’s contacts with the parent living in the Commonwealth.”
Rennie v. Rosenthol, 995 A.2d 1217, 1221-22 (Pa.Super. 2010). “The
statute does not require that the parent with primary custody have a
significant connection with the state.” Id. at 1222.
Further, “Pennsylvania courts conducting a Section 5422 analysis . . .
view the parents’ and child’s relationship to Pennsylvania as of the date a
motion to modify custody is filed in Pennsylvania.” T.D. v. M.H., 219 A.3d
1190, 1198 (Pa.Super. 2019); see also S.K.C., 94 A.3d at 411. We use the
date of the filing of the motion to modify as the “snapshot” date because, “[o]f
all dates available,” it is “the date least subject to manipulation by the parties
or to change by court calendar or continuances.” T.D., 219 A.3d at 1198.
We have not addressed what due process requirements attach to the
determination of whether Pennsylvania should relinquish jurisdiction under
Section 5422, and Section 5422 does not provide guidance. However, Section
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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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5410 of the UCCJEA, which discusses communication between courts, provides
that where courts communicate with each other regarding proceedings under
the UCCEJA, the court may allow the parties to participate and, if they are not
able to participate, “they must be given the opportunity to present facts and
legal arguments before a decision on jurisdiction is made.” 23 Pa.C.S.A. §
5410. The note to Section 5410 clarifies that “the participation of the parties
should not . . . be considered a substitute for a hearing and the parties must
be given an opportunity to fairly and fully present facts and arguments on the
jurisdictional issue before a determination is made. This may be done through
a hearing or, if appropriate, by affidavit or memorandum.” Id., Note; See
also J.C. v. K.C., 179 A.2d 1124, 1134 (Pa.Super. 2017) (concluding court
abused its discretion by relinquishing jurisdiction under Section 5427(b)
without permitting party to submit information relevant to the forum non
conveniens determination or present facts and legal arguments pursuant to
Section 5210).
The trial court here concluded a hearing was not required because “the
docket provides all information necessary to make a jurisdictional decision and
because the applicable law requires expeditious handling of jurisdictional
issues.”6 Trial Ct. Op., filed May 18, 2021, at 5. It reasoned that during the
six months preceding the filing of the motion to relinquish, Father, who lived
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6 Further, Section 5407 provides that a question regarding the existence or
exercise of jurisdiction raised during a child custody dispute must “upon
request of a party, . . . be given priority on the calendar and handled
expeditiously.” 23 Pa.C.S.A. § 5407.
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in New York, had sole legal and primary physical custody. Id. at 8. It noted
that “child may have spent some time in the Commonwealth during [Mother’s]
period of partial custody,” but it was “persuaded that the connections to the
Commonwealth are not significant, as [C]hild is enrolled in school in New York,
the child receives medical insurance through [Father’s] spouse, and [C]hild’s
entire extended family resides in the State of New York.” Id. It then concluded
that because “neither the child nor the child and one parent – in this case,
[Father] – or a person acting as a parent have a significant connection with
Pennsylvania and substantial evidence concerning the child’s care, protection,
training, and personal relationships is no longer available here,” it was proper
to find that jurisdiction should be relinquished. Id.
We conclude the trial court erred. When applying Section 5422, the
court used the date of the filing of the motion to relinquish, rather than the
filing of the motion to modify, to determine whether it continued to have
jurisdiction. See T.D., 219 A.3d at 1198. Further, it construed Section 5422(a)
to require transfer where the primary caregiver and the child no longer lived
in the state. This, however, is not an accurate reading of the statute. Rather,
Pennsylvania retains jurisdiction so long as a parent remains and exercises
custody time in the state, provided that the parent and the child have a
“substantial connection” to the state. See Rennie 995 A.2d at 1221-22.
Further, we do not agree with the trial court that the docket contained
all necessary information. The court based its determination on pleadings, not
evidence, and granted the motion without allowing Mother sufficient time to
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file a responsive pleading. Because there is no response, and no prior hearing
where facts were presented, we cannot determine whether jurisdiction
remains in Pennsylvania or whether Pennsylvania lacked jurisdiction under
Section 5422. We therefore remand to the trial court for further proceedings.7,
Because we grant relief based on Mother’s first two issues, we do not reach
her third issue.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2021
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7 Father sought relinquishment of jurisdiction under Section 5324, not under
Section 5327 for forum non conveniens, and the court concluded it lacked
jurisdiction under Section 5324.
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