B.A.B. v. J.J.B.

J-A09008-17
2017 PA Super 199B.A.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.J.B.
Appellee No. 1804 MDA 2016
Appeal from the Order Entered October 5, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2006-20469
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
OPINION BY OTT, J.: FILED JUNE 26, 2017
B.A.B. (hereinafter “Mother”) appeals from the order entered October
5, 2016, in the Lebanon County Court of Common Pleas, denying her
petition to transfer the jurisdiction and venue of her child custody
proceeding with J.J.B. (hereinafter “Father”). On appeal, Mother contends
the trial court erred in denying her petition by: (1) misapplying the law
regarding venue for custody matters; (2) basing its ruling on insufficient
evidence; and (3) improperly citing Mother’s prior recusal request as a
reason to deny the petition. Mother also argues the trial court erred when it
permitted a witness to testify telephonically at the venue hearing. For the
reasons below, we affirm.
As the trial court wisely comments in its opinion, “[n]othing about this
case has ever been easy[.]” Trial Court Opinion, 10/5/2016, at 1. The
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tortured procedural history underlying this appeal is as follows.1 Mother and
Father have been embroiled in a custody dispute over their three sons
(Z.R.B., born February 2000; C.J.B., born May 2002; and C.M.B., born
September 2003) since 2006.2 Prior to their separation in May of 2006, the
parties both lived in Lebanon County. Thereafter, Mother moved to York
County. Father, who has always remained in Lebanon County, filed a
complaint for custody in the Lebanon County Court of Common Pleas. The
parties appeared before a custody conciliator, who issued a summary report
in July of 2006. Following a de novo hearing, on October 6, 2006, the trial
court entered an order granting Mother primary physical custody, Father
partial custody, and the parties’ shared legal custody.3 Thereafter, in March
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1
We have gleaned the following facts from the certified record, and the
lengthy trial court opinions filed in this matter.
2
The parties divorced in May of 2012. See Order, 5/17/2012.
3
Lebanon County Court of Common Pleas Judge Bradford H. Charles has
presided over this custody matter continuously since 2006. In his October
6, 2006, adjudication, Judge Charles described this case as “one of the most
difficult custody cases [he] ever had to decide.” Trial Court Adjudication,
10/6/2006, at 1. The court summarized the parties’ primary complaints, at
that time, as follows: (1) Father insisted Mother was a “prescription drug
addict who is incapable – due to her addiction - of properly caring for the
children” and worried his role in their lives would be greatly diminished if
they were permitted to live with Mother in York County, and (2) Mother
complained that Father was a “tyrannical and overbearing husband,” who
would “lash out verbally whenever things do not go his way.” Id. at 3-4.
The court stated: “While we do not doubt for a second the love both parties
professed for their children, we must conclude that there is a fair amount of
truth to what both sides argue.” Id. at 4. Although the court ultimately
granted Mother primary physical custody, it cautioned: “Mother should not
(Footnote Continued Next Page)
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2009, and November 2011, Father filed two petitions for contempt, claiming
Mother was interfering with his periods of partial custody. Both times, the
trial court entered an order finding Mother in contempt. See Order,
5/29/2009; Order 11/22/2011.
Subsequently, three incidents in 2012 led Mother to seek a Protection
from Abuse (“PFA”) order against Father. The most serious incident
occurred during a custody exchange in February of 2012. Father used
physical force to compel their oldest son, Z.R.B., to enter Father’s car.
When Z.R.B. attempted to climb out, Father shoved him back in, whereupon
Z.R.B. hit his head. See Trial Court Opinion, 5/15/2013, at 15. Father was
subsequently charged with simple assault, and agreed to enter an
accelerated rehabilitative disposition (“ARD”) program.4 See id. at 14. He
did not see Z.R.B. for almost a year following that incident. See id.
_______________________
(Footnote Continued)
view this result as a ‘victory’, nor should Father view it as a ‘defeat’.
Custody orders are never final.” Id. at 35.
4
The trial court emphasized Father had agreed to the disposition in lieu of
trial; thus, the 2013 custody hearing was the first time the facts were
recounted in a courtroom. See id. at 14. Further, the court stated that had
the same facts been presented in a criminal courtroom that were presented
during the custody hearing, the court “would have found Father not guilty of
any crime.” Id. at 17. Indeed, the trial court laid much of the blame for the
incident on Z.R.B., who “acted like a spoiled brat and would not listen to his
parents[,]” and Mother, who “created a culture of mistrust” between the
children and Father, and then “poured gasoline” on an already incendiary
situation. Id. at 17-18.
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In July of 2012, Mother filed a PFA against Father, alleging two
incidents involving their other sons. She claimed Father (1) “slammed”
C.M.B.’s head against a wall while the child was in the shower, and (2)
grabbed C.J.B. during an argument “and jerked his head and neck back and
forth yelling at him.” Id. at 19. Although a PFA hearing was scheduled, the
parties came to an agreement without an admission of culpability, which
directed Father have no contact with his sons for a period of six months.
See id. at 19-20.
On December 12, 2012, Father filed a petition for modification of
custody. After conducting another custody trial, the Lebanon County trial
court entered an order on May 15, 2013, once again granting Mother
primary physical custody, and Father partial physical custody.5 With respect
to legal custody of the children, the court awarded it jointly to both parties,
but stated: “If and only if the parties cannot reach an agreement after
consultation regarding an important issue, Father shall be granted an ability
to render a final and binding decision.” Order, 5/15/2013, at 1-2. Mother
filed an appeal of the custody order.
On March 13, 2014, a panel of this court affirmed in part, and reversed
in part. While the panel affirmed the physical custody schedule, it concluded
the court’s legal custody tie-breaker provision was improper. See J.J.B. v.
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5
The court explained its decision in an 81-page opinion. See Trial Court
Opinion, 5/15/2013.
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B.A.B., 100 A.3d 306 [988 MDA 2013] (Pa. Super. 2014) (unpublished
memorandum at *7). Accordingly, the panel remanded the case, and
directed the trial court to consider “whether, absent its imposition of the
improper tie-breaking provision, Father should have sole legal custody since
the trial court was essentially granting that status to him in its May 15, 2013
order.” Id.Upon remand, the trial court conducted another hearing on June 9,
2014. Thereafter, on August 5, 2014, the court entered an order awarding
primary legal custody to Father. See Order, 8/5/2014. Mother, once
again, filed an appeal to this Court, which affirmed the trial court’s decision
in an unpublished memorandum. See J.J.B. v. B.A.B., 121 A.3d 1137[1501 MDA 2014] (Pa. Super. 2015) (unpublished memorandum). While
that appeal was pending, Father filed another petition for contempt on
September 22, 2014, asserting Mother was interfering with his custody of
the children. Following a hearing, the court again found Mother in contempt
by order entered November 25, 2014.
Sometime during 2015, C.M.B. stopped attending school in York
County, where he resided with Mother. Mother claimed it was due to a
medical issue. Nevertheless, truancy charges were filed against Mother in
York County. Although she was found guilty of the summary offenses on
April 26, 2016, the charges were later withdrawn after she appealed.
Meanwhile, in April of 2016, Mother filed three petitions in York County
to address the parties’ ongoing custody dispute: (1) a petition to modify
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custody; (2) a petition to transfer jurisdiction and venue; and (3) a petition
for emergency relief. After an initial hearing, Mother withdrew her petition
for emergency relief. The York County trial court conducted a hearing on
June 14, 2016, concerning Mother’s petition to transfer jurisdiction and
venue, but later dismissed the petition, concluding Lebanon County must
first relinquish venue.
While Mother was attempting to transfer the custody action to her
home county, York County Children, Youth and Families Agency (“CYF”) filed
a dependency petition regarding C.M.B. Following four hearings between
June and September of 2016, C.M.B. was adjudicated dependent on
September 28, 2016, and placed in the Philhaven Residential Treatment
Program, which is located in Lebanon County.
On June 27, 2016, in the Lebanon County Court of Common Pleas,
Mother filed the instant petition, her second, seeking to transfer jurisdiction
and venue. The trial court conducted a hearing on September 22, 2016.
However, the court indicated it would not render a decision until after the
aforementioned dependency hearing scheduled for September 28, 2016.6
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6
During the September 22nd venue hearing, York County CYF caseworker,
Rebecca Irvine, testified that her agency intended to request the York
County court place C.M.B. with Father. See N.T., 9/22/2016, at 29.
Therefore, the Lebanon County trial court informed the parties that it would
delay its decision until after the dependency hearing. The court stated:
If [the York County court] accepts the recommendation of
York County [CYF], my intent would be to retain jurisdiction and
(Footnote Continued Next Page)
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One week later, the Lebanon County trial court judge, who has continuously
presided over this matter,7 contacted York County Judge Gregory M. Snyder,
who presided over C.M.B.’s dependency proceedings. The Lebanon County
court relayed the content of the conversation as follows:
Judge Snyder advised this Jurist that he declared C.[M.]B. to be
dependent and he instructed the York County Children & Youth
Services agency to find a long-term placement facility for
C.[M.]B. Judge Snyder also advised this Jurist that he will be
rotating out of dependency court shortly and that he would not
preside over a custody trial if York were to be granted venue.
Trial Court Opinion, 10/5/2016, at 5. Thereafter, on October 5, 2016, the
trial court entered an order denying Mother’s petition to transfer jurisdiction
and venue, and directing both parties to appear for a pre-trial conference on
October 10, 2016. See Order, 10/5/2016. However, after consulting with
counsel on October 10, 2016, the court entered another order, noting (1)
C.M.B. had been “ordered into placement at the Philhaven residential facility
located in Lebanon County[;]” (2) “[t]he parties agree that their two oldest
_______________________
(Footnote Continued)
venue and give you folks a three-day custody trial during the
next available term of civil court which would mean you would
not have to wait as long as you would normally wait for a trial.
If [the York County court] does not change custody of
[C.M.B.], I have a difficult decision to make because you’re both
right, in many of the things you argued[,] you’re both right.
So I’m going to put this aside until the 28th. …
Id. at 121-122.
7
See supra, n. 3.
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children should not be removed from the school district they are currently
attending[;]” and (3) it was “not necessary” at that time to make any
custody determinations, particularly until C.M.B. was released from his
placement. Order, 10/10/2016. Accordingly, the court directed:
1. To the extent necessary, both parties agree that any
pending motion seeking to modify the existing court custody
order should be deemed withdrawn.
2. In the event that either party wishes to alter the
existing custody order, a new custody modification petition will
have to be filed. If such a petition is filed, it shall not be
necessary for the parties to proceed with a conciliation or
mediation. The matter should be listed immediately for a
pretrial conference before the undersigned.
3. If and when [C.M.B.] is to be released from
placement, and if the parties require a decision regarding
custody of [C.M.B.] at that time, a motion will have to be filed
with this Court to raise the issue of where [C.M.B.] will live when
he is released from placement.
Order, 10/10/2016. This timely appeal followed.8, 9
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8
Mother filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) simultaneously with her notice of appeal.
Although the court had filed an opinion accompanying its October 5, 2016,
Order, on November 28, 2016, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) to address any still unresolved issues.
9
We note that pursuant to Pennsylvania Rule of Appellate Procedure 311(b),
an order sustaining venue is appealable as of right only if:
(1) the plaintiff, petitioner, or other party benefiting from the
order files of record within ten days after the entry of the order
an election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of venue
or jurisdiction is presented.
(Footnote Continued Next Page)
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In her first issue, Mother contends the trial court misapplied the law
when it denied her petition to transfer venue to York County. She asserts
that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”), 23 Pa.C.S. §§ 5401-5482, York County has jurisdictional
priority over Lebanon County because there is a dependency action pending
in York County. See Mother’s Brief at 8-9.
Section 5426 of the UCCJEA provides, in relevant part:
(a) General rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court …
may not exercise its jurisdiction under this subchapter if, at the
time of the commencement of the proceeding, a proceeding
_______________________
(Footnote Continued)
Pa.R.A.P. 311(b). Here, neither of these requirements have been met. See
In re W.H., 25 A.3d 330, 334 (Pa. Super. 2011) (appellate court may
question the appealability of an order sua sponte as it implicates the court’s
jurisdiction), appeal denied, 24 A.3d 364 (Pa. 2011).
Nevertheless, this Court has permitted an appeal from an order
denying a petition to change venue when there are no additional pending
claims before the trial court. See Galgon v. Martnick, 653 A.2d 44, 46 n.1
(Pa. Super. 1995) (finding order sustaining venue in child support case was
appealable as final order when “all that remain[ed] before the trial court was
the pending support order.”). See also J.K. v. W.L.K., 102 A.3d 511, 512
n.1 (Pa. Super. 2015) (considering appeal from order denying petition to
change venue in custody matter; noting, “[t]here is no custody petition for
modification petition pending”).
Based upon the trial court’s October 10, 2016, order, it is clear there
are now no outstanding matters pending before the court. Indeed, the
parties agreed “any petition seeking to modify the existing court custody
order should be deemed withdrawn[,]” and the court would not reconsider
its custody ruling until after C.M.B. was released from placement. Order,
10/10/2016. Therefore, this appeal is properly before us.
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concerning the custody of the child has been commenced in a
court of another [county] having jurisdiction substantially in
conformity with this chapter unless the proceeding has been
terminated or is stayed by the court of the other [county]
because a court of this Commonwealth is a more convenient
forum under section 5427 (relating to inconvenient forum).
23 Pa.C.S. § 5426.10 Mother maintains that because a dependency action
was pending in York County at the time the petition to modify custody was
filed in Lebanon County, York County was “first in time” and had
“jurisdictional priority” over all custody matters concerning the parties’
children. Mother’s Brief at 8. She notes Section 5402 of the Domestic
Relations Act defines a “child custody proceeding” as one “in which legal
custody, physical custody or visitation with respect to a child is an issue[,]”
including a “proceeding for … dependency.” 23 Pa.C.S. § 5402. Accordingly,
because York County was exercising jurisdiction over the custody of the
children via the dependency proceeding, Mother insists Lebanon County
could not exercise simultaneous jurisdiction.
Short of declaring this issue waived, the trial court found that “Mother
did not raise this argument at the time of the change of venue hearing on
September 22, 2016, nor did Mother cite [Section] 5426 in any pleading[.]”
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10
We note the language of the UCCJEA applies to interstate custody
disputes. See 23 Pa.C.S. §§ 5421-5430. However, this Court has adapted
and applied the provisions to determine intrastate disputes. See J.K.,
supra, 102 A.3d at 515-516. Moreover, while the UCCJEA speaks of
jurisdiction, it is axiomatic that “all counties within the Commonwealth
maintain subject matter jurisdiction of custody disputes.” Id. at 514. Here,
we apply the provisions to determine venue. See id. at 514-516 (applying
the UCCJEA to determine the proper venue of custody dispute).
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Trial Court Opinion, 11/28/2016, at 4. We agree. Indeed, at the conclusion
of the venue hearing, the court specifically inquired of counsel: “Does
everybody agree that the bottom line is that I have to look at the factors set
forth in Section 5427 and make a decision based upon those factors? Are
we agreeing that that’s the paradigm of my analysis?” N.T., 9/22/2016, at
107. The attorneys for both Mother and Father replied, “Yes.” Id.
Therefore, we would find her reliance on Section 5426 is waived.11
Nevertheless, we conclude Section 5426 is inapplicable under the facts
before us. Here, Mother sought to modify an existing Lebanon County
custody order. Therefore, Lebanon County had jurisdictional priority over
York County, despite the recent dependency proceeding. Indeed, as the trial
court points out, when Mother filed the petition to transfer venue in York
County, the York County court concluded “Lebanon County should determine
whether or not to retain jurisdiction and venue.” Trial Court Opinion,
11/28/2016, at 6. This ruling was proper under the UCCJEA. See 23
Pa.C.S. §§ 5422-5423.
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11
“Although an objection to subject matter jurisdiction may be raised at any
time during a judicial proceeding, [q]uestions of personal jurisdiction, venue
and notice which relate to the method by which a court having the power to
adjudicate the matter first obtained superintendence of the cause of action
..., must be raised at the first reasonable opportunity or they are waived.”
Goodman v. Goodman, 556 A.2d 1379, 1390 (Pa. Super. 1989), appeal
denied, 565 A.2d 1167 (Pa. 1989)
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Section 5422 of the Act provides, in relevant part, that after a court
makes an initial custody determination, it retains “exclusive, continuing
jurisdiction over the determination” unless certain factors, not relevant here,
are present.12 23 Pa.C.S. § 5422(a). Under Section 5423, however, a court
with “exclusive, continuing jurisdiction” may determine “that a court of
[another county] would be a more convenient forum under section 5427.”
23 Pa.C.S. § 5423(1). The focus of both Mother’s petition to transfer
jurisdiction and venue, as well as the September 2016 hearing, was on the
inconvenient forum factors listed in Section 5427(b). Therefore, we
conclude the Lebanon County court applied the correct law – 23 Pa.C.S. §
5427 – when it considered whether York County was a more convenient
venue for the parties’ custody proceedings. Mother’s first issue, accordingly,
fails.
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12
Pursuant to Section 5422, a court does not retain exclusive, continuing
jurisdiction if: (1) the child and parents lack “a significant connection” with
the court and “substantial evidence” concerning the child’s “care, protection,
training and personal relationships” is no longer available in the county, or
(2) neither the child nor the parents reside in the county. 23 Pa.C.S. §
5422(a). Mother does not argue on appeal that either of these exceptions
are applicable herein. Furthermore, this Court has held “a significant
connection [exists] where one parent resides and exercises parenting time in
the state and maintains a meaningful relationship with the child.” S.K.C. v.
J.L.C., 94 A.3d 402, 412 (Pa. Super. 2014) (quotation omitted).
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Next, Mother argues the evidence of record was insufficient to justify
the trial court’s denial of her petition to transfer venue. Specifically, she
contends the argument and testimony at the venue hearing was limited, the
court disregarded the fact that all of the recent proceedings have taken
place in York County, the court did not weigh the Section 5427 factors
proportionally, and, in fact, relied on several irrelevant factors in making its
decision. See Mother’s Brief at 10-15. Accordingly, she asserts the Lebanon
County court’s ruling was an abuse of discretion.
Our standard of review in this matter is as follows:
A court’s decision to exercise or decline jurisdiction is subject to
an abuse of discretion standard of review and will not be
disturbed absent an abuse of that discretion. Under
Pennsylvania law, an abuse of discretion 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. An abuse of discretion
requires clear and convincing evidence that the trial court
misapplied the law or failed to follow proper legal procedures.
J.K. v. W.L.K., 102 A.3d 511, 513 (Pa. Super. 2014), quoting Lucas v.
Lucas, 882 A.2d 523, 527 (Pa. Super. 2005). Furthermore, as with all
custody orders, “[w]e must accept findings of the trial court that are
supported by competent evidence of record,” and defer “issues of credibility
and weight of the evidence … to the presiding trial judge who viewed and
assessed the witnesses first-hand.” A.D. v. M.A.B., 989 A.2d 32, 35–36
(Pa. Super. 2010).
Mother seeks to transfer venue of the parties’ custody matter to York
County. Pursuant to Section 5427 of the UCCJEA, a court that has
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jurisdiction of a child custody matter “may decline to exercise its jurisdiction
at any time if it determines that it is an inconvenient forum under the
circumstances and that a court of another [county] is a more appropriate
forum.” 23 Pa.C.S. § 5427(a). The statute provides the following, non-
exhaustive list of factors a trial court should consider in making this
determination:
(1) whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
(2) the length of time the child has resided outside this
Commonwealth;
(3) the distance between the court in this Commonwealth and
the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should
assume jurisdiction;
(6) the nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
(8) the familiarity of the court of each state with the facts and
issues in the pending litigation.
23 Pa.C.S. § 5427(b)(1)-(8).
Here, the trial court painstakingly considered every argument
presented by the parties, and each statutory factor listed in Section 5427,
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before determining it would retain jurisdiction of this matter.13 See Trial
Court Opinion, 10/5/2016, at 7-19. We find the court’s analysis thorough,
and its application of the facts presented herein appropriate. Therefore, we
need not reiterate its findings in detail. See id.
In summary, the court weighed factors (1) and (7) as neutral to the
parties; factors (3), (4), and (6) in favor of Mother, but not heavily; factor
(2) in favor of Mother; and factors (5) and (8) in favor of Father, with
particular emphasis on factor (8), i.e., the court’s familiarity with the facts
and issues. With regard to factor (1), domestic abuse, the court found
Mother’s “proffered claims of abuse … to be exaggerated at best and
fabricated at worst,” and proposed Mother’s goal was to “re-litigate her past
claims of abuse before a new judge[.]” Id. at 9. The court found the
distance to the courthouse and financial circumstances of the parties –
factors (3) and (4) - favored Mother, although not to a great extent. It
noted the distance to the Lebanon County courthouse added only 30 minutes
to Mother’s travel time, and while Father’s financial circumstances were
better than Mother’s, he was not “wealthy.” 14 Id. at 11. Furthermore, with
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13
Indeed, the court provided a comprehensive, two-page chart outlining
each statutory element, and the parties’ arguments concerning how each
element applied to the facts of this case. See Trial Court Opinion,
10/5/2016, at 7-8.
14
The court explained Mother has not been “consistently employed since
2006” due to her struggle with substance abuse addiction and a “wide
variety of medical problems.” Id. at 11.
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regard to the location of the evidence, factor (6), the court found that, while
“the majority of witnesses in this case will be from York County,” there were
“important witnesses” located in Lebanon County, and technological devices
such as videoconferencing, teleconferencing and Skype could be employed
to “mitigate” any inconvenience.15 Id. at 14-15.
Mother’s main points of contention appear to be with the weight the
court gave to the remaining factors.16 She emphasizes that the children
have lived with her in York County for more than ten years. See Mother’s
Brief at 11. More importantly, all of the recent custody matters have been
heard by the York County trial court. Mother explains:
In the last ten months of time, York County has had no less than
nine hearings to discuss the custody of the children, their
medical conditions, and the impact of the custody on school and
dependency. Because of the multiple cases being handled in
York County and the common evidence and witnesses, there is a
significant favor for the York County court system to be able to
handle them all effectively and timely.
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15
In particular, the trial court rejected Mother’s claim that “it is preferable
for document-intensive witnesses such as doctors to be personally present
so that counsel can go over records with the witness in the presence of the
Court.” Id. at 14. Indeed, the court stated: “[T]he reality of modern case
presentation is that most doctors prefer to testify remotely or by
deposition.” Id.
16
We note that although Mother complains the trial court imposed “a 7
minute limitation on argument … just prior to the start” of the hearing, she
fails to explain how this limitation prejudiced her, save for her allegation that
“the record was insufficient for [the court’s] analysis.” Mother’s Brief at 10-
11. However, as noted above, we conclude the testimony was sufficient to
support the court’s findings on the Section 5427 factors.
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Id. at 12.
Mother further states: “although Lebanon County has a history with
this case, it has not heard any matter on this case in two years until just
recently, after Mother’s petition to transfer, when Father filed a Petition for
Contempt against Mother.” Id. at 14. Accordingly, she maintains that,
contrary to the Lebanon County court’s finding, “the York County courts
have become very familiar with this case.” Id.
Lastly, Mother takes issue with the trial court’s finding that she
implicitly agreed to jurisdiction in Lebanon County. She states she “never
agreed to jurisdiction” and points out that, during the venue hearing, “she
specifically testified that she thought she had to remain there and was not
aware that she could relieve her burden though a transfer.” Mother’s Brief
at 13-14. Therefore, she argues the action should be transferred to York
County.
Our review of the certified record, the transcript from the venue
hearing, the parties’ briefs, the trial court’s opinion, and the relevant
statutory and case law, leads us to conclude the trial court did not abuse its
discretion when it retained jurisdiction of this custody action. Section 5427
does not mandate a trial court must weigh each factor equally. In the
present case, the trial court took a common sense approach based on its
extensive history with this matter and the parties.
While we agree the more recent truancy and dependency proceedings
occurred in York County, those matters arose as a direct result of Mother’s
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actions, that is, her failure to ensure C.M.B. attended school. See N.T.,
9/22/2016, at 30 (Irvine testifying that the dependency action pertained
only to Mother because as the “primary physical custodian during the
weekdays … it is her obligation to assure that her children attend school
every day.”). Lebanon County is where Father has consistently resided since
before the parties’ separation, where the children visit Father during his
custodial periods, and where, recently, C.M.B. was placed after his
dependency adjudication.
Moreover, although the dependency and truancy issues will be relevant
in the custody matter, Mother downplays the fact that the Lebanon County
trial court - and Judge Charles in particular - has conducted 14 hearings over
the last 11 years to resolve the parties’ custody disputes.17 Indeed, the trial
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17
The record reveals the following court hearings:
- Hearings on 8/29/2006 and 9/5/2006 to rule on Father’s
petition for emergency relief regarding Mother’s prescription
drug abuse;
- A custody hearing on 9/29/2006, and a review hearing on
8/13/2007;
- Hearings on 5/29/2006 and 11/22/2011, to resolve Father’s
petitions for contempt;
- Hearings on 3/14/2013, 3/15/2013, and 4/26/2013, to
determine Father’s petition for modification;
- A hearing on 6/9/2014, per this Court’s remand following
appeal;
(Footnote Continued Next Page)
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court noted, “[f]or nine of the past ten years, the locus of this custody
litigation has been in Lebanon County.” Trial Court Opinion, 10/5/2016, at
16. The court further explained:
The simple truth is that no jurist has as much background and
knowledge about Mother and Father than does the undersigned.
Moreover, it would simply not be possible for any jurist to gain
the necessary insight without hours and hours of duplicative
background testimony. We are unwilling to inflict this burden
upon the York County Court of Common Pleas.
Id. at 17. We find no reason to disagree. See S.K.C. v. J.L.C., 94 A.3d
402, 417 (Pa. Super. 2014) (“[I]t only requires common sense for a trial
court to conclude that an issue will be resolved more expeditiously in a
forum where proceedings have already commenced and where the trial court
has held hearings on the child custody dispute than a forum where
proceedings have not commenced and the trial court would have to learn the
case anew.”). This Court has stated: “Nothing is more detrimental to an
effective resolution of custody matters than constant revisitation by different
judges in different jurisdictions[.]” K.W.B. v. E.A.B., 698 A.2d 609, 613
(Pa. Super. 1997).
_______________________
(Footnote Continued)
- Hearings on 11/17/2014 and 8/23/2016, to resolve Father’s
petitions for contempt; and
- A hearing on 9/22/2016, to determine Mother’s petition to
transfer jurisdiction and venue.
We note, too, that each of the contempt hearings, save for the last
one on August 23, 2016, resulted in a finding that Mother was in contempt
for failing to abide by the parties’ custody order.
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We also find no basis to disregard the trial court’s finding that Mother
implicitly agreed “that Lebanon County should decide issues pertaining to
her children’s custody[.]” Id. at 12. As noted repeatedly above, this
particular trial judge has a long history with the parties. Although Mother
claims she never petitioned to transfer the matter because “she was not
aware” she could do so,18 the trial court was free to disregard that
testimony, and conclude, as it did, that “Mother’s current Motion to Change
Venue is not about convenience; it is a thinly veiled effort to obtain a new
Judge who she hopes will be more willing to buy into the narrative she
proposes.” Id. at 13. Indeed, from 2006, when Mother first moved to York
County, until April of 2016, when she filed a petition to transfer in York
County, Mother never questioned the Lebanon County court’s jurisdiction.
The trial court emphasized Mother “was perfectly satisfied with litigating
matters in Lebanon County so long as the decisions were in her favor.” Id.
at 12. However, the court explained the “dynamic” shifted in 2013, after the
court issued the 81-page opinion, which “employed blunt and
uncompromising language that was critical of Mother and what [the court]
characterized as her ‘campaign of estrangement’ directed at Father.” Id.
Mother even sought the court’s recusal following its award of primary legal
custody to Father in August of 2014. Under these facts, we cannot say the
____________________________________________
18
Mother’s Brief at 14.
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court’s determination that Mother implicitly agreed to its jurisdiction was an
abuse of discretion.
Because we find the evidence presented was sufficient to justify the
trial court’s ruling to retain jurisdiction in this matter, and the court’s
findings did not exhibit an abuse of discretion, we conclude Mother’s second
issue warrants no relief.
In her penultimate claim,19 Mother argues the trial court improperly
considered her prior recusal request as a reason to deny her petition to
transfer venue. She insists “the court’s judgment was manifestly
unreasonable to use this prior request against her.” Mother’s Brief at 17.
Again, we find no error or abuse of discretion on the part of the trial
court. The court considered Mother’s 2014 recusal request as evidence of
her change in attitude toward the court after it granted Father primary legal
custody, and criticized her “‘campaign of estrangement’ directed at Father.”
Trial Court Opinion, 10/5/2016, at 12. This was a proper consideration.
Indeed, as discussed supra, one of the factors in determining whether a
jurisdiction is an inconvenient forum for a custody dispute is whether the
parties agreed as to which county should assume jurisdiction. See 23
Pa.C.S. § 5427(b)(5). Here, the court considered the fact that Mother had
implicitly agreed Lebanon County was a convenient forum, until it entered a
____________________________________________
19
We have reordered the final two issues for ease of disposition.
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ruling that was not in her favor. See Order, 8/5/2014 (granting primary
legal custody to Father). Therefore, Mother’s subsequent recusal request,
and her later attempts to transfer jurisdiction and venue to York County,
provided evidentiary support for the trial court’s finding that Mother was
engaged in “blatant ‘forum-shopping.’”20 Trial Court Opinion, 10/5/2016, at
13. Consequently, this issue is meritless.
Lastly, Mother contends the trial court improperly permitted Father’s
witness, CYS caseworker Rebecca Irvine, to testify telephonically. She
asserts the ruling was prejudicial because Father’s last-minute request left
her “no time … to prepare for electronic testimony,” and the court denied her
“the opportunity to properly cross examine the witness.” Mother’s Brief at
15.
When considering an evidentiary ruling, our standard of review is well-
established:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law.
____________________________________________
20
The fact Mother denied she was engaging in “forum-shopping,” and
claimed she succumbed to the inconvenience of travelling to Lebanon County
because she did not realize she could seek a transfer of venue, “was a
credibility determination, best made by the trial court which witnessed
Mother testify.” S.K.C., supra, 94 A.3d at 414–415.
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K.T. v. L.S., 118 A.3d 1136, 1165 (Pa. Super. 2015) (quotation omitted).
Pennsylvania Rule of Civil Procedure 1930.3 permits telephonic
testimony during a domestic relations matter “[w]ith the approval of the
court upon good cause shown.” Pa.R.C.P. 1930.3. Here, on the day of the
hearing, Father filed a motion to allow the telephone testimony of Irvine. He
averred that (1) he had subpoenaed Irvine; (2) CYF requested she be
permitted to testify by telephone because of its policy “that a caseworker
cannot attend a hearing without an agency attorney present[;]” and (3)
Mother would not agree to permit Irvine to testify telephonically. Motion to
Allow Telephone Testimony, 9/22/2016, at 1-2. Mother objected to Father’s
request.21 Nevertheless, at the beginning of the venue hearing, the trial
court granted Father’s request. See N.T., 9/22/2016, at 3, 25.
The court addressed Mother’s claim on appeal in its opinion as follows:
This Court determined there was good cause to allow testimony
by electronic means due to the nature of the caseworker’s job
demands. Nothing about the caseworker’s testimony would have
been different had she been physically present in court to testify.
During the hearing, Mother’s counsel had the opportunity to both
impeach and cross-examine testimony. Furthermore, never
before had any of Mother’s attorneys objected to the usage of
electronic testimony throughout this Court’s belabored history
with this case. In fact, Mother has presented numerous
witnesses over the years via teleconference, and neither Father
nor this Court has objected to the presentation of testimony via
____________________________________________
21
Mother includes in her Reproduced Record a copy of a reply she
purportedly filed in the trial court. However, that copy is not time-stamped,
and no reply is included in the certified record.
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this medium. Only now as Mother petitioned to switch court
venue does she take issue with testimony by electronic means.
There is nothing novel about our decision to permit
testimony via teleconference. As Rule 1930.3 recognizes,
technology exists to facilitate presentation of evidence without
the need for a witness to personally appeal in court. … The use
of teleconferencing in this case did not deprive Mother of her
opportunity for a fair proceeding. Counsel was able to cross-
examine the witness fully.
Trial Court Opinion, 11/28/2016, at 7-8 (footnote omitted).
We detect no abuse of discretion on the part of the trial court. Father
provided good cause for his request, and the court granted the motion, as it
had done in the past for Mother. See id. Mother’s focus appears to be on
her claim that the court limited her cross-examination of the witness. See
N.T., 9/22/2016, at 37-39 (trial court did not permit Mother’s counsel to
retrieve documents purportedly contradicting caseworker’s testimony that
Mother was uncooperative).22 That claim has nothing to do with the court’s
ruling permitting the witness to testify telephonically. Accordingly, no relief
is due.
Order affirmed.
____________________________________________
22
To the extent Mother challenges this limitation, we detect no error or
abuse of discretion. Indeed, Mother’s cooperation, or lack thereof, with York
County CYF, had no bearing on whether York County was a more convenient
venue for the parties’ custody issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2017
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