G.M.H. v. K.Y.

J-S52031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
G.M.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
K.Y. : No. 1622 EDA 2019
Appeal from the Order Entered May 6, 2019
In the Court of Common Pleas of Wayne County Civil Division at No(s):
253-DR-2016
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 07, 2019
G.M.H. (“Grandmother”) appeals from the order granting the Exceptions
to the Master’s Report and Recommendation filed by K.Y. (“Mother”) and
dismissing Grandmother’s Complaint in Custody, which sought partial custody
of A.K. (“Child”), for a lack of standing. We affirm.
In June 2016, Grandmother1 filed a Complaint in Custody for
Grandparent Rights against Mother seeking partial physical custody of Child.
On November 15, 2016, the trial court dismissed the Complaint for lack of
standing. Grandmother did not appeal.
Subsequent to the filing of the first Complaint, a separate dependency
proceeding commenced, and a separate third party had custody of Child. It
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1 Grandmother is Child’s paternal grandmother. Child’s father has partial
custody of Child through an informal agreement with Mother.
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appears Grandmother did not have visitation with Child during the dependency
proceeding. Mother regained custody following the dependency proceeding.
In April 2018, Grandmother filed a second Complaint in Custody for
Grandparent Rights at the same docket number as the first Complaint.
Although the Complaint was docketed with the trial court on April 12, 2018,
Grandmother did not affect service on Mother until April 25, 2018. Mother filed
a pro se Answer on May 7, 2018, in which she challenged Grandmother’s
standing. The parties entered into an Interim Agreement in which they agreed
that, among other things, Grandmother would have weekly visits with Child
on Saturday from 1:00 p.m. to 5:00 p.m. The parties agreed that there would
be a hearing or conference in the matter in three months.
Mother did not bring Child to the first five visits. Mother filed a Petition
for Modification. Grandmother filed a Petition for Contempt and Special Relief
in Custody2 and a Counter Petition for Modification of Custody, in which she
sought overnight visits with Child.
A Master held a hearing on the petitions and filed a Report and
Recommendation, in which he recommended that Grandmother continue to
have weekly visits with Child. The Master did not address standing.
Mother filed Exceptions to the Report and Recommendation, including a
claim that the Master erred in failing to determine whether Grandmother had
standing. In May 2019, the trial court granted Mother’s exceptions and
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2 The parties stipulated to add an additional hour to Grandmother’s weekly
visits to resolve the contempt petition. Stipulation, filed Sept. 7, 2018.
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dismissed Grandmother’s custody Complaint for lack of standing.
Grandmother filed a timely Notice of Appeal.
Grandmother raises the following issues:
1. Did the trial court err as a matter of law in concluding
that a grandmother was divested of standing as a result of
the repeal of 23 Pa.C.S.A. § 5325(2) when the grandmother
had standing when she initiated the custody action in June
of 2016 pursuant to 23 Pa.C.S.A. § 5325(2) and the child’s
mother did not object to the grandmother’s standing at that
time or to the constitutionality of 23 Pa.C.S.A. § 5325(2)?
2. Did the trial court err as a matter of law in concluding
that a grandmother lacked standing to seek partial physical
custody when the child’s mother waived the issue of the
grandmother’s standing by failing to object to her standing
after she filed her initial custody complaint, failing to file
preliminary objections to the grandmother’s most recent
custody complaint, entering into agreements with the
grandmother by which the grandmother was granted partial
physical custody of the child, and failing to object to the
grandmother’s standing to file the counterpetition for
modification before the trial court?
Grandmother’s Br. at 4.
Grandmother first argues that she had standing under the version of 23
Pa.C.S.A. § 5325(2) that existed when she filed her first custody complaint in
2016 and her standing cannot be overcome by a subsequent change in the
law.
When Grandmother filed her first complaint, the grandparent custody
statute allowed grandparents to seek custody where the “parents of the child
have been separated for a period of at least six months.” 23 Pa.C.S.A. §
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5325(2). In September 2016, the Pennsylvania Supreme Court found this
provision to be unconstitutional. D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016).3
Grandmother cites to M.G. v. L.D. There, this Court found we did not
need to address whether D.P. applied. M.G. v. L.D., 155 A.3d 1083, 1087 at
n.5 (Pa.Super. 2017). We reasoned that although “we have re-evaluated a
party’s standing following a factual change in circumstances, . . . our review
of Pennsylvania jurisprudence does not support . . . re-evaluation of standing
. . . absent a determination that the change in law applied retroactively.” Id.
Here, although Grandmother filed a Complaint in Custody in 2016, that
is not the complaint that was before the trial court. Rather, the court dismissed
that Complaint for lack of standing. Further, following that Complaint, there
was a dependency proceeding, which was resolved when Mother regained
physical and legal custody of Child. Grandmother filed the Complaint at issue
in 2018, after the dependency proceeding. Therefore, whether Grandmother
had standing when she filed her 2016 Complaint is irrelevant. See M.W. v.
S.T., 196 A.3d 1065, 1071 (Pa.Super. 2018) (concluding “Children’s change
in status from dependent to not dependent, and reunification with Parents,
are relevant changes in circumstances that permit the re-evaluation of
standing upon motion by a party”).
Grandmother next argues that Mother failed to preserve her objection
to standing because Mother did not file preliminary objections within 20 days
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3In May 2018, the Pennsylvania General Assembly amended the statute. The
amended statute became effective in July 2018. 23 Pa.C.S.A. § 5325.
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of the filing of Grandmother’s 2018 Complaint. Grandmother argues that
Mother’s denial of Grandmother’s standing in the Answer to the Complaint is
not sufficient to preserve the claim.4
The trial court concluded:
The Rules of Civil Procedure state that “[a] party must raise
any question of jurisdiction of the person or venue, and may
raise any question of standing, by preliminary objection filed
within twenty days of service of the pleading to which
objection is made or at the time of hearing, whichever first
occurs.” Pa. R. Civ. Pro. 1915.5(a) (emphasis added). Since
resolution of a standing issue has the potential to control
the outcome of the entire case without the court ever
reaching the merits, it is important that the issue be raised
as early as possible. A party, however, is not required under
Rule 1915.5(a) to raise a question of standing by
preliminary objection. Here, [Mother] provided
[Grandmother] with notice of her intention to object to
standing in her pro se Answer . . . . The Master failed to
address the issue of standing in the Report and
Recommendation that was filed on January 18, 2019 to the
incorrect docket number, 167-2014-dr. The Master’s failure
to address the issue caused [Mother] to file an exception on
the matter. Thus, this Court did not err by dismissing
[Grandmother’s] Custody Complaint for lack of standing.
...
[Mother] filed a pro se Answer to [Grandmother’s]
Complaint on May 7, 2018. [Mother’s] Answer provided
[Grandmother] with notice of her intention to object to
standing. On August 6, 2018, the parties voluntarily entered
into an Interim Agreement. Nowhere within the Agreement
do the parties address the issue of standing. It is unclear to
this Court how entering into an interim agreement waives
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4 Grandmother claims that Mother filed her Answer 25 days after the
Complaint. However, although the Complaint was filed on April 12, 2018, it
was not served on Mother until April 25, 2018. She filed her pro se answer on
May 7, 2018, which was within 20 days of service.
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outstanding issues that are to be determined by the court.
[Grandmother] failed to provide this Court with legal
argument that would support such a claim. Thus, this Court
did not err in dismissing [Grandmother’s] Custody
Complaint for lack of standing.
Trial Court Opinion, filed June 27, 2019, at 2-3.
We agree with the trial court. Mother filed a pro se Answer, raising the
issue of standing and entered an Interim Agreement, knowing that a hearing
would be held on the issues raised in the Complaint and Answer, including
whether Grandmother had standing. Further, after the Master issued a Report
and Recommendation that did not address whether Grandmother had
standing, Mother filed Exceptions, again asserting that Grandmother lacked
standing. We decline to find waiver under these circumstances.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/19
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5 We further note that Mother and Father are in agreement that Grandmother
should not have custody of Child. Father testified that Grandmother could
come to Father’s house to visit Child, but that “this is not the way” to see
Child. N.T., 1/8/19/, at 40. When asked if Grandmother should have overnight
visits, Father responded “[a]bsolutely not.” Id. at 41.
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