V.L.S. v. S.C.

J-A21023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
V.L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.C.
Appellee No. 661 EDA 2014
Appeal from the Order Entered January 30, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2009-11738
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V.L.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.C.
Appellee No. 662 EDA 2014
Appeal from the Order Entered January 30, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2011-10287
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 12, 2014
V.L.S. (“Father”) appeals from the custody order in the Court of
Common Pleas of Delaware County entered on January 30, 2014, that
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*
Retired Senior Judge assigned to the Superior Court.
J-A21023-14
denied his de novo appeal from the findings of the Master dated April 9,
2013, and denied his petition to vacate the Master’s recommended custody
order dated October 18, 2011. After careful review, we affirm.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth
the factual and procedural history in this case, which the testimonial and
documentary evidence supports. As such, we adopt it herein. See Trial
Court Opinion, 3/24/14, at 2–4.
We summarize the relevant background, as follows. On June 16,
2011,1 Mother filed an emergency complaint in custody with respect to the
parties’ children, L.T.S., a male, born in May of 1997, and C.M.S., a female,
born in June of 1998. At the time, a custody proceeding between the parties
was pending in the Richland County Court of Common Pleas in South
Carolina, where Father then resided, and where the parties, in 2003, had
obtained a divorce decree that incorporated a custody agreement. See Trial
Court Opinion, 3/24/14, at 2. By order dated June 17, 2011, the trial court
deemed Mother’s emergency complaint a petition to modify the existing
custody order and listed it with the Custody Master. Id. Following
communication between the respective trial courts regarding subject matter
jurisdiction, the Richland County Court of Common Pleas issued an order on
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1
The trial court’s Rule 1925(a) opinion contains a typographical error,
stating that Mother filed the emergency complaint in custody on June 6,
2011.
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August 22, 2011,2 relinquishing jurisdiction and transferring the matter to
the Delaware County Court of Common Pleas (“transfer order”). Id. at 3.
On October 18, 2011, the Master held a hearing on Mother’s petition and
and issued a recommended custody order awarding Mother sole legal and
physical custody. See Temporary Custody Order, 10/18/11. The trial court
adopted the Master’s recommended order on October 20, 2011. Trial Court
Opinion, supra, at 3-4. The transfer order was registered in the Delaware
County Court of Common Pleas on May 14, 2012. Id. at 3.
On February 25, 2013, Father filed a petition to vacate the Master’s
recommended custody order of October 18, 2011. Father alleged that
Pennsylvania did not have jurisdiction to hold a hearing on any pleading filed
by Mother prior to the date of the transfer order. See Petition to Vacate, at
¶ 11. As such, Father requested that the Master’s recommended order
dated October 18, 2011 be vacated. On April 9, 2013, following a hearing,
the Master denied Father’s petition.
On April 17, 2013, Father requested a hearing de novo. The trial court
held a hearing on January 2, 2014, during which Father represented himself
pro se, and Mother was represented by counsel. By order dated January 21,
2014, and entered on January 30, 2014, the trial court denied Father’s de
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2
The order, a copy of which is included in the certified record, is dated
August 22, 2011, and time-stamped August 23, 2011.
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novo appeal from the findings of the Master dated April 9, 2013, and denied
his petition to vacate the Master’s recommended order dated October 18,
2011. Father filed timely notices of appeal and concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3
On appeal, Father presents the following issues for our review:
Whether the Trial Court Erred and Committed an Abuse of
Discretion When it Entered its Order dated June 17, 2011
Denying Mother’s Emergency Petition, and Treating It Instead as
a Petition to Modify Custody When It Lacked Jurisdiction to do so
Under the UCCJEA and as such, the Resulting October 18, 2011
Order of Custody was Invalid[?]
Whether the Trial Court Erred and/or Committed an Abuse of
Discretion when it Found that the August 22, 2011 South
Carolina Order Transferring Jurisdiction was Effective Prior to the
Date that it was Registered as a Foreign Custody Order on May
14, 2012[?]
Whether the Trial Court Erred and/or Committed an Abuse of
Discretion When it Failed to Find That Mother and Her Counsel
Committed Fraud Upon The Court When They Failed to Advise
The Court In Their Emergency Petition For Custody Filed On June
16, 2011, that South Carolina Was Exercising Continuing and
Exclusive Jurisdiction of the Custody Matter Under The Uniform
Child Custody Jurisdiction and Enforcement Act (“The
UCCJEA”)[?]
Whether the Trial Court Erred and/or Committed an Abuse of
Discretion When it Denied Father’s De Novo Appeal of the
October 18, 2011 Order[?]
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3
The record reveals that the underlying custody matter has two separate
docket numbers, which are not duplicative, and that the subject order was
filed under both docket numbers. Father filed notices of appeal under both
docket numbers, which this Court consolidated sua sponte.
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Father’s Brief, at 4.
In this appeal, Father challenges the trial court’s determinations
upholding the Master’s October 18, 2011, recommended custody order.
Specifically, Father contends that Pennsylvania did not have subject matter
jurisdiction until May 14, 2012, when the trial court registered the South
Carolina court’s order of August 22, 2011, relinquishing jurisdiction.
We begin with the appropriate standard of review, which is as follows:
[W]here [t]he issue for review centers on the question of subject
matter jurisdiction....this question is purely one of law, our
standard of review is de novo, and our scope of review is
plenary.
B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (quotations and
citations omitted).4
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4
We note that this appeal does not involve an appeal from an order
exercising or declining to exercise jurisdiction. In such a case, we review for
an abuse of discretion. See id. at 1082 n.1, citing Wagner v. Wagner,
887 A.2d 282, 285 (Pa. Super. 2005) (“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.”).
The confusion regarding the correct standard of review for an appeal is
common where a party raises a question of law concerning jurisdiction under
the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
See S.K.C. v. J.L.C., 94 A.3d 402, 406–407 (Pa. Super. 2014) (“[W]e have
imprecisely quoted this language [regarding an abuse of discretion standard]
even when the question was not whether the trial court properly exercised
(or declined to exercise) jurisdiction, but rather the question was whether
the trial court actually possessed subject matter jurisdiction.”).
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Here, Father is claiming the trial court lacked jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23
Pa.C.S. §§ 5401–5482. In making these arguments, Father cites 23 Pa.C.S.
§ 5423, which provides jurisdiction for a trial court to modify a child custody
determination made by a tribunal in a different state.5 See Father’s Brief at
13–14. Section 5423, in turn, references 23 Pa.C.S. § 5421, which
establishes subject matter jurisdiction before the courts of common pleas in
child custody matters.6 As such, Father’s challenge implicates the subject
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5
Section 5423 provides, in pertinent part:
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) ….
23 Pa.C.S. § 5423(1).
6
Section 5421 provides, in pertinent part:
(a) General rule. --Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court of
(Footnote Continued Next Page)
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matter jurisdiction of the trial court. See S.K.C. v. J.L.C., 94 A.3d 402,
406-407 (Pa. Super. 2014) (footnotes omitted) (“The UCCJEA establishes
subject matter jurisdiction before the courts of common pleas in child
custody matters under various subsections of Title 23, including 23 Pa.C.S.A.
§ 5421 and 5422.”). Accordingly, we apply a de novo standard of review.
B.J.D. v. D.L.C., supra.
Turning to Father’s substantive arguments, Father argues that South
Carolina had exclusive and continuing jurisdiction over the parties’ custody
matter on June 17, 2011, when the trial court entered its order that treated
Mother’s emergency complaint as a petition to modify custody. Father
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(Footnote Continued)
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) ….
23 Pa.C.S. § 5421(a)(1), (a)(2).
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maintains the resulting October 18, 2011 recommended custody order of the
Master was therefore invalid. See Father’s Brief at 16. In his second,
related issue, Father argues the August 22, 2011 South Carolina transfer
order did not become a valid Pennsylvania order until May 14, 2012, when it
was registered in the trial court, and, therefore, the Master’s October 18,
2011 recommended custody order should have been vacated by the trial
court. See Father’s Brief at 20.
Upon careful review, we discern no basis upon which to disturb the
determination of the trial court that the Delaware County Court of Common
Pleas had subject matter jurisdiction when the Master entered the October
18, 2011, recommended custody order. We conclude that the trial court
applied the proper legal analysis to Father’s claims regarding subject matter
jurisdiction under the UCCJEA, and we therefore adopt the trial court’s
cogent Rule 1925(a) opinion as dispositive of Father’s first and second
issues. See Trial Court Opinion, 3/24/14, at 7–9, (concluding: “[E]ven
though the [August 22, 2011] South Carolina transfer Order was not
docketed in Delaware County, Pennsylvania until May 14, 2012,
Pennsylvania had jurisdiction through the UCCJEA effective the date that
South Carolina relinquished jurisdiction which was prior to the Master’s
October 2011 hearing date. Delaware County, Pennsylvania, therefore, had
jurisdiction to enter the Master’s Recommendations dated October 18, 2011
as an Order of Court on October 20, 2011.” Id. at 9).
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Next, we turn to Father’s third and fourth issues raised on appeal. In
Father’s third issue, he argues that the trial court erred and abused its
discretion by failing to find that Mother and her counsel committed fraud
upon the court by not including in the emergency complaint a provision
concerning the pending custody action in the Richland County Court of
Common Pleas. In this regard, Father also argues that the trial court erred
in refusing to admit a private journal entry authored by Mother in 2000.
In his fourth issue, Father argues that the trial court erred in denying
his de novo appeal of the findings of the Master dated April 9, 2013, because
he was denied a full and fair hearing de novo. Father admits that he “was
permitted to introduce evidence on January 2, 2014, in support of his
petition to vacate and demand for a de novo hearing,” but complains that
“Mother never testified,” and “[w]ithout Mother’s testimony or Father’s
ability to cross-examine Mother on the issue of the filing of her Emergency
Complaint for Custody, it was impossible for Father to prove his case with
respect to fraud.” Father’s Brief at 29.
The legal principles that guide our review of these issues are as
follows: First,
[w]ith regard to issues of credibility and weight of the evidence,
this Court must defer to the trial judge who presided over the
proceedings and thus viewed the witnesses first hand.
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Johns v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004) (citation omitted),
cited with approval in C.L. v. Z.M.F.H., 18 A.3d 1175, 1180 (Pa. Super.
2011). Moreover,
[q]uestions concerning the admission and exclusion of evidence
are within the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion.
In Re Adoption of D.M.H., 682 A.2d 315, 321 (Pa. Super. 1996) (citation
omitted), appeal denied, 690 A.2d 237 (Pa. 1997).
Finally, among the requirements of due process are notice, and an
opportunity to present evidence and to cross-examine opposing witnesses.
See generally, RESPA of Pa., Inc. v. Skillman, 768 A.2d 335, 339–340
(Pa. Super. 2001).
Based upon our review, we conclude the trial court has ably addressed
the third and fourth issues raised by Father. Therefore, we likewise adopt
the trial court’s well-reasoned Rule 1925(a) opinion as dispositive of the
arguments advanced by Father in support of the third and fourth issues
raised in this appeal. See Trial Court Opinion, 3/24/14, at 9–14, (Sections
B; C and subpart (b); and D) (opining: (1) Mother “did not ‘purposefully
conceal’ the jurisdictional issue, which was a matter of record apparent from
prior custody proceedings”7; (2) “a [private] journal entry authored by
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7
Trial Court Opinion, 3/24/2014, at 10.
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[Mother] eleven years earlier whereby she remorsefully recounts how she
lies and needs to ‘cut out this cancerous growth’” 8 was too far removed in
time to be considered relevant and was properly excluded; and (3) Father
“had a full and fair de novo hearing on January 2, 2014, on his petition to
vacate,”9 following the findings of the Master dated April 9, 2013, on
Father’s Petition to Vacate).
Accordingly, we affirm.
Order affirmed.10
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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8
Id. at 12.
9
Id. at 13.
10
In the event of further proceedings, the parties are directed to attach a
copy of the trial court’s Rule 1925(a) opinion, dated March 24, 2014.
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