B.L. v. T.B. and F.L.

J-S72031-16
2016 PA Super 284B.L., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
T.B. AND F.L., :
:
Appellees : No. 828 MDA 2016
Appeal from the Order Entered April 27, 2016
in the Court of Common Pleas of Schuylkill County
Civil Division, at No(s): S-1431-2014
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED DECEMBER 13, 2016
B.L. (Guardian) appeals from the April 27, 2016 order which granted
the motion of F.L. (Father) to dismiss the complaint for custody of J.L. and
M.L. (Children, collectively). We affirm.1
Children were born in Texas to Father and T.B. (Mother). Children
lived in Texas until the summer of 2013, when they began residing in
Pennsylvania with Guardian, who is a cousin of Mother.2 The arrangement
1
Also before us is Father’s motion to dismiss pursuant to Pa.R.A.P. 1972(3),
which provides that any party may move to dismiss an appeal “for want of
jurisdiction in the unified judicial system of this Commonwealth.” Pa.R.A.P.
1972(3). Because this Court has jurisdiction over this appeal from a final
order of the trial court pursuant to 42 Pa.C.S. § 742, we deny Father’s
motion. See, e.g., Astorino v. New Jersey Transit Corp., 912 A.2d 308,
310 (Pa. Super. 2006) (reviewing and affirming order that dismissed action
for lack of subject matter jurisdiction).
2
Children have an older sister who remained in Texas and who is not
involved in this case.
* Retired Senior Judge assigned to the Superior Court.
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was governed by a guardianship agreement, which was signed by Guardian,
Father, and Mother. The agreement provided that Father and Mother had
determined that it would be in the best interests of Children to be in
Guardian’s primary care, and that they “consent to provide full legal and
physical guardianship over the person” of Children to Guardian.
Appointment of Guardianship, 6/7/2013. The agreement further provided
that the guardianship appointment “shall extend until August 29, 2014,
unless revoked prior thereto, in writing, by mutual agreement of the parties
or by order of court.” Id.In October 2013, Father filed a custody action in Texas which resulted
in an order establishing the custodial arrangements between Mother and
Father, and giving Father the right to designate Children’s primary residence
without regard to geographic location. Texas Custody Order, 10/30/2013, at
3. Guardian was not notified of, and thus did not have the opportunity to
participate in, the Texas custody proceedings.
On July 25, 2014, Guardian filed a custody complaint in the Court of
Common Pleas of Schuylkill County. On August 27, 2014, following a
conciliation conference, an interim order was entered maintaining the status
quo pending trial. Trial was repeatedly scheduled and continued as the
parties sought to reach an agreement on custody. After the parties reported
having resolved the case and sought time for stipulations to be executed,
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the court cancelled the trial and directed the parties to provide the
stipulations to the court as soon as possible. Order, 1/9/2015.
On August 26, 2015, Guardian filed a praecipe for trial, and trial was
scheduled for January 21, 2016. Father and Guardian appeared before the
trial court on that date, and the court learned that (1) Guardian changed her
mind about “the previous resolution based on information provided to her by
[C]hildren’s counselor” and (2) Father wished to file a motion “questioning
the jurisdiction” of the Schuylkill County court. Order, 2/19/2016. The trial
court accordingly struck the case from the trial list and set a schedule, and
later an amended schedule, for pretrial motions.
On March 22, 2016, Father filed a motion to dismiss Guardian’s
complaint, arguing alternatively that the existence of the Texas custody
order deprived the trial court of jurisdiction, or that the trial court should
decline to exercise jurisdiction because Texas is a more convenient forum.
Motion to Dismiss, 3/22/2016, at 6. The trial court granted Father’s motion
by order of April 27, 2016. Guardian timely filed a notice of appeal.3
3
Guardian did not file a statement of errors complained of on appeal
contemporaneously with her notice of appeal as required by Pa.R.A.P.
1925(a)(2)(i). However, this Court has “concluded that a bright-line
application of the waiver rule was not warranted in that case for violating the
procedure outlined in Pa.R.A.P. 1925(a)(2)(i).” J.P. v. S.P., 991 A.2d 904,
907 (Pa. Super. 2010). Here, Guardian ultimately filed her statement, the
trial court has addressed Guardian’s issues, and there is no apparent
prejudice. Furthermore, the dispositive issue, subject matter jurisdiction, is
one that can be raised at any time or by this Court sua sponte. B.J.D. v.
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Whether a court has subject matter jurisdiction is a question of law,
for which our standard of review is de novo and our scope of review
plenary.4 S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa. Super. 2014). “[T]he
question of subject matter jurisdiction may be raised at any time, by any
party, or by the court sua sponte.” B.J.D., 19 A.3d at 1082.
Guardian filed her custody complaint in Pennsylvania, unaware that
there had been a prior order entered governing custody of Children. Once it
was determined that a Texas court entered an initial custody determination
that awarded custody to Father, the question became whether the
Pennsylvania trial court had jurisdiction to modify the Texas order. That
question is governed by the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), which has been adopted in both Pennsylvania
and Texas. See 23 Pa.C.S. §§ 5421-5482; Tex. Fam. Code Ann.
§§ 152.001-152.317.
Under the UCCJEA, once a court makes an initial custody
determination, that court retains exclusive, continuing jurisdiction over the
determination until that court decides that it no longer has sufficient
D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011). Therefore, waiver is not an
issue in this appeal.
4
It appears that the trial court dismissed Guardian’s petition because it
decided to decline to exercise jurisdiction, rather than because found that
Pennsylvania lacked jurisdiction. However, “we may uphold a decision below
if there is any proper basis for the result reached; thus, our affirmance may
be based on different grounds from the trial court.” In re Adoption of
R.J.S., 889 A.2d 92, 98 (Pa. Super. 2005).
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connection to the case. See 23 Pa.C.S. § 5422; Tex. Fam. Code Ann.
§§ 152.202. The UCCJEA contains a provision governing jurisdiction to
modify custody orders. Pennsylvania’s statute governing modification
provides as follows:
Except as otherwise provided in section 5424 (relating to
temporary emergency jurisdiction),[5] 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. § 5423.
Here, there is no indication in the record that the Texas court was
notified about the pendency of the present action, let alone that it had ruled
that Texas no longer had exclusive, continuing jurisdiction or that
Pennsylvania would be a more convenient forum. Further, the trial court
determined that Father and Mother continue to reside in Texas. Because
5
Guardian does not argue that the Pennsylvania court had temporary
emergency jurisdiction, and it does not appear to us that such jurisdiction
has been established in this case.
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neither subsection (1) nor (2) of section 5423 applies, the trial court lacked
jurisdiction to modify the Texas order. Cf. T.A.M. v. S.L.M., 104 A.3d 30,
34 (Pa. Super. 2014) (holding Pennsylvania had jurisdiction to modify
Tennessee custody order where the child had been living in Pennsylvania for
three years and no parent or person acting as a parent resided in Tennessee
any longer).
Guardian challenges the Texas custody order on the basis that she, the
guardian of Children, was not given the requisite notice and opportunity to
be heard prior to its entry. Guardian’s Brief at 5-6. She also claims that
Texas lacked jurisdiction to make the initial custody determination because it
was not the home state of Children in October 2013. Id. Guardian further
argues that, even if the order is valid, Texas law does not provide for its
exclusive continuing jurisdiction in the matter. Id. at 7.
First, Texas did have jurisdiction to make the initial custody
determination. The Texas statute concerning initial custody jurisdiction
provides, in relevant part, as follows:
[A] court of this state has jurisdiction to make an initial child
custody determination only if:
(1) this state 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 state but a parent or person acting as a parent
continues to live in this state….
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Tex. Fam. Code Ann. § 152.201(a). Home state is defined as “the 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.” Tex. Fam. Code Ann. § 152.102(7).
Guardian contends that Texas was not the home state of Children in
October 2013 because they had been living in Pennsylvania since June 2013.
Guardian’s Brief at 5. Guardian is correct that Children had not been living
in Texas for at least six consecutive months immediately before Father
commenced the action in Texas. However, Guardian ignores the facts that
Children had lived in Texas the entire time before they came to
Pennsylvania, making Texas the home state of Children within six months
before Father filed the action there, and that Father and Mother continued to
live in Texas. Accordingly, Texas had jurisdiction in October 2013 to make
an initial custody determination under Tex. Fam. Code Ann. § 152.201(a).
Second, Texas does have exclusive, continuing jurisdiction over that
initial custody determination. The relevant Texas statute provides that once
it has made an initial custody determination under section 152.201, it has
exclusive, continuing jurisdiction until “(1) a court of this state 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 state and
that substantial evidence is no longer available in this state concerning the
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child's care, protection, training, and personal relationships.” Tex. Fam.
Code Ann. § 152.202(a).
Guardian’s argument is as follows:
Taking the above elements one at a time, it is clear that
the Children in this case have virtually no connection, much less
a significant connection, with Texas given that they have not
resided in Texas for nearly three years. Further, it is clear that
substantial evidence is no longer available in Texas concerning
the Children’s care, protection, training, and personal
relationships given the length of their absence from Texas.
It is also clear that if the Children have no connection with
Texas then it is impossible for a child and one parent or a child
and a person acting as a parent to have a significant connection
with the State of Texas.
Guardian’s Brief at 7 (emphasis in original).
If we actually do take the elements of the Texas statute one at a time,
starting with the first one, it is clear that Guardian’s argument is unavailing.
Guardian has ignored the requirement that the determinations as to the rest
of the elements listed in subsection 152.202(a)(1) must have been made by
“a court of this state,” i.e., a Texas court. The record does not show that
any Texas court has made such a ruling.
Finally, even if the Texas order were a legal nullity for one reason or
another, Pennsylvania did not have jurisdiction to make an initial custody
determination. The Pennsylvania statue regarding initial jurisdiction is as
follows.
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§ 5421. Initial child custody jurisdiction
(a) General Rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court of
this Commonwealth has jurisdiction to make an initial child
custody determination only if:
(1) 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;
(2) a court of another state does not have jurisdiction
under paragraph (1) or a court of the home state of the
child has declined to exercise jurisdiction on the ground
that this Commonwealth is the more appropriate forum
under section 5427 (relating to inconvenient forum) or
5428 (relating to jurisdiction declined by reason of
conduct) and:
(i) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent,
have a significant connection with this
Commonwealth other than mere physical presence;
and
(ii) substantial evidence is available in this
Commonwealth concerning the child’s care,
protection, training and personal relationships.
(3) all courts having jurisdiction under paragraph (1) or
(2) have declined to exercise jurisdiction on the ground
that a court of this Commonwealth is the more appropriate
forum to determine the custody of the child under section
5427 or 5428; or
(4) no court of any other state would have jurisdiction
under the criteria specified in paragraph (1), (2), or (3).
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(b) Exclusive jurisdictional basis.--Subsection (a) is the
exclusive jurisdictional basis for making a child custody
determination by a court of this Commonwealth.
(c) Physical presence and personal jurisdiction
unnecessary.--Physical presence of or personal jurisdiction over
a party or a child is not necessary or sufficient to make a child
custody determination.
23 Pa.C.S. § 5421. “Home state” is defined as follows:
The 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. In
the case of a child six months of age or younger, the term
means the state in which the child lived from birth with any of
the persons mentioned. A period of temporary absence of any
of the mentioned persons is part of the period.
23 Pa.C.S. § 5402.
As noted above, Children were absent from Texas pursuant to a
guardianship agreement that provided that Guardian’s appointment “shall
extend until August 29, 2014, unless revoked prior thereto, in writing, by
mutual agreement of the parties or by order of court.” Appointment of
Guardianship, 6/7/2013. Guardian argues that the trial court erred in
concluding that the agreement was temporary because nothing in the
agreement refers to the appointment as temporary; she claims that the
agreement “is not worded in such a way that it states it will terminate on
that date, rather the wording is such that the guardianship could continue
past that date.” Guardian’s Brief at 12.
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Guardian’s interpretation is patently incorrect. The plain language of
the agreement set a maximum length of the guardianship - until August 29,
2014 - but provided that it could end sooner by being revoked prior to that
end date. Nothing in the agreement contemplates an extension of
Guardian’s appointment beyond August 29, 2014. Thus, the trial court
properly construed the agreement as a temporary guardianship.
The temporary nature of the guardianship rendered Children’s absence
from Texas a temporary absence. M.E.V. v. R.D.V., 57 A.3d 126, 133 (Pa.
Super. 2012) (holding that absence from prior state was temporary during
the time it was contemplated that the parent and child would return to the
other state). Under our definition of “home state,” Children’s temporary
absence from Texas counts toward their Texas residency. R.M. v. J.S., 20
A.3d 496, 507 (Pa. Super. 2011) (“[F]or home state determination, the law
is clear that if a parent leaves one state temporarily and takes the child to
another state, no matter for how long, the child is still considered as having
‘lived’ in the first state during the time of that temporary absence.”).
Thus, at the time Guardian instituted the custody proceedings in
Pennsylvania, Pennsylvania law provided that Texas, not Pennsylvania, was
the home state of Children. Because Children had a home state elsewhere,
and that home state had not declined to exercise jurisdiction, Pennsylvania
lacked jurisdiction to make an initial custody determination under section
5421.
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Guardian has sound arguments against the propriety of the initial
Texas determination and in favor of Pennsylvania as a more appropriate
jurisdiction at this time for making a custody determination as to Children.
However, for all of the foregoing reasons, those arguments must be
presented to the court in Children’s home state of Texas.
Order affirmed.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
6
Because we have concluded that the trial court lacked subject matter
jurisdiction, Guardian’s remaining issues on appeal are moot.
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