Weber, R. v. Weber, A.

J-A06011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD EDWARD WEBER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANISSA WEBER : No. 1178 WDA 2022
Appeal from the Order Entered September 26, 2022
In the Court of Common Pleas of Erie County Civil Division at No(s):
13419-17
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: May 22, 2023
Appellant, Richard Edward Weber (“Father”), appeals pro se from the
September 26, 2022 order granting the petition for special relief filed by
Anissa Weber (“Mother”) and dismissing Father’s pleadings for lack of
jurisdiction. We affirm.
The facts and procedural history of this case are as follows. On
December 8, 2017, Father filed a complaint for custody, seeking sole custody
of Mother’s and Father’s minor child (hereinafter, “Child”). Father’s Complaint
for Custody, 12/8/17, at *1 and *3 (unpaginated). A custody order was
entered on January 8, 2018, pursuant to which Mother and Father acquired
shared physical and legal custody of the Child. Trial Court Order, 1/8/18, at
*1-*4 (unpaginated). Thereafter, between August 3, 2018 and May 22, 2019,
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* Retired Senior Judge assigned to the Superior Court.
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Father filed multiple petitions for contempt of the January 8, 2018 custody
order, as well as multiple petitions for special relief, alleging Mother violated
the January 8, 2018 custody order by relocating to New York and failing to
share custody of the Child. See Father’s Petition for Contempt of Custody
Order, 8/3/18, at *1 (unpaginated); Father’s Petition for Special Relief,
2/25/19, at *1-*3 (unpaginated), Father’s Petition for Contempt of Custody
Order, 2/25/19, at *1 (unpaginated); Father’s Petition for Special Relief,
5/22/19, at *1-*3 (unpaginated).
On March 22, 2019, Mother filed a relocation notice in which she
admitted she failed to notify the court of her permanent relocation to New
York in September 2018 due to, inter alia, Father’s incarceration. Mother’s
Relocation Notice, 3/22/19, at *1 and *3-4 (unpaginated). In addition, Mother
stated that “family . . . matters [were] being addressed through the family
courts of Chautauqua County, Mayville, [New York], under Judge Jeffrey
Piazza.”1 Id. at *3. Thereafter, the trial court dismissed Father’s various
petitions due to “jurisdictional issues” with New York. See Trial Court Order,
3/25/19, at 1 (dismissing Father’s petition for special relief and petition for
contempt of custody order because “jurisdictional issues with New York exist
which the parties are addressing with New York filings”); see also Trial Court
Order 5/24/19, at 1 (rescinding a previous order granting Father relief
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1 For clarity, we shall refer to the trial court in New York as “the New York
court.”
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following his May 22, 2019 petition “based upon the Order of Protection issued
in New York protecting the [C]hild”).
Following the trial court’s May 24, 2019 order, there was little to no
activity in this matter until June 2022, when Father filed another petition for
contempt of custody order and another petition for special relief. See Father’s
Petition for Contempt of Custody Order, 6/6/22, at 1; see also Father’s
Petition for Special Relief, 6/8/22, at 1. In both petitions, Father again argued
that Mother failed to comply with the trial court’s January 8, 2018 custody
order when she relocated to New York. Id. In response to Father’s petitions,
the trial court ordered the parties to appear for a custody conciliation
conference on August 15, 2022. Trial Court Order, 6/22/22, at 1.
On July 25, 2022, Mother filed a petition for special relief. Mother’s
Petition for Special Relief, 7/25/22, at *1-*3 (unpaginated). In her petition,
Mother requested “that special relief be granted relating to [Father’s]
accusations of contempt of custody.” Id. at *2. In support of her request,
Mother claimed that Father has been incarcerated since September 2018 and
that Father “continues . . . to [try to] reopen [the parties’ custody] case” even
though the New York court entered a custody order awarding Mother sole
custody of the Child on November 20, 2019 (the “New York custody order”).
Id. In light of Mother’s petition, the trial court continued the August 15, 2022
hearing until September 23, 2022. Trial Court’s Rule to Show Cause, 7/25/22,
at 1.
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On September 23, 2022, the trial court held a hearing on Mother’s
petition for special relief. At the outset, the court stated:
This matter has to do with custody, but initially the [c]ourt
needs to make a determination with regards to jurisdiction as
there are questions that have been raised regarding
jurisdiction. The way we are going to proceed is as follows: I
will hear first from [Father]. He can tell me what his position is
and what he believes is appropriate. And then, after I hear from
[Father], I will hear from [Mother]. Thereafter, I will take this
matter under advisement[.]
N.T. Hearing, 9/23/22, at 2. The court then directed Father to address the
issue of jurisdiction. Id. Father, however, stated he would not “entertain
[Mother’s] [p]etition for [s]pecial [r]elief” due to lack of service. Id. at 3.
Instead, Father addressed the issues raised in his various petitions. Id. at
4-7.
Thereafter, the trial court directed Mother to respond to Father’s claims.
At the outset, Mother disputed Father’s allegation regarding lack of service,
indicating that she had “the receipts for [her petition for special relief] with
tracking,” demonstrating that it was delivered to Father at his place of
incarceration on August 23, 2022. Id. at 8. Then, as directed by the trial
court, Mother explained the conditions of the New York custody order. Id. In
particular, Mother stated the order awarded her sole custody of the Child,
made provisions for Father’s custodial rights following his release from prison,
and specifically noted that the New York court “retain[ed] jurisdiction of all
custody visitations and support . . . involving [the Child].” Id. When Mother
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concluded, the trial court questioned her about the location of the Child. Id.
at 9-10.
Ultimately, on September 26, 2022, the trial court entered an order that
granted Mother’s petition for special relief, dismissed all pending petitions,
and canceled the custody trial scheduled for October 24, 2022 for lack of
jurisdiction. Trial Court Order, 9/26/22, at 1. The trial court, in a footnote,
explained its reasoning as follows.
Without regard to intervening court proceedings in the state of
New York, [Father], in June of this year, initiated proceedings
at the above-captioned docket on the basis of a January 8, 2018
consent [o]rder of [c]ourt regarding custody of [the Child]. The
evidence of record indicates that Father is attempting to
circumvent the [New York custody order which] was entered
with the agreement of Father’s counsel [which awarded] Mother
sole custody of [the Child. The Child] has not resided in
Pennsylvania since 2017. She resides in New York, where she
has continuously resided with Mother for the past four years.
Id. at n.1. The trial court also attached the New York custody order to its
September 26, 2022 order. See id. This timely appeal followed.
Appellant raises the following issue on appeal:2
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2 Father’s brief is woefully deficient and utterly fails to comply with our rules
of appellate procedure. Indeed, it does not contain a statement of jurisdiction;
a copy of the order in question; a statement of both the scope of review and
the standard of review; a statement of the questions involved; a statement of
the case; a summary of the argument; an argument section; a short
conclusion stating the precise relief sought; the relevant trial court order; a
copy of Father’s 1925(b) statement; or a certificate of compliance. See
Pa.R.A.P. 2111-2119. Accordingly, we are authorized by our appellate rules
to quash or dismiss this appeal. See Pa.R.A.P. 2101 (“Briefs and reproduced
records shall conform in all material respects with the requirements of [our]
(Footnote Continued Next Page)
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[Whether the trial court erred in declining to exercise
jurisdiction and make a custody determination regarding the
Child?]
See generally Appellant’s Brief at *2 (unpaginated).3
“In evaluating whether a court of this Commonwealth may [exercise
jurisdiction over] a custody determination made by a court of another state,
we look to the [Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”)].” A.L.-S. v. B.S., 117 A.3d 352, 356 (Pa. Super. 2015). “The
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rules as nearly as the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal or other
matter may be quashed or dismissed.”); see also Commonwealth v.
Postie, 110 A.3d 1034, 1041 n.8 (Pa. Super. 2015) (“Although this Court is
willing to construe liberally materials filed by a pro se litigant, pro se status
generally confers no special benefit upon an appellant. Accordingly, a pro se
litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of the Court.”). Indeed, “[t]his Court has held that the rules of appellate
procedure are ‘mandatory, not directing’ and it is within our discretion to
dismiss an appeal when the rules of appellate procedure are violated.
However, if the failure to comply with the rules of appellate procedure does
not impede review of the issues or prejudice the parties, we will address the
merits of the appeal.” Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super.
2005) (citation omitted). Herein, it is apparent Father is challenging the trial
court’s September 26, 2022 order and its decision not to exercise jurisdiction
over this matter. Although we do not condone Father’s failure to comply
strictly with the appellate rules, the defects in Father’s brief do not hinder our
appellate review and, therefore, we decline to quash or dismiss the appeal.
See Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32
A.3d 800, 804 n.6 (Pa. Super. 2011) (en banc), aff'd, 91 A.3d 680 (Pa. 2014)
(citations omitted).
3 During the September 23, 2022 hearing, as well as on appeal, Father
asserted that Mother failed to serve him with her July 25, 2022 petition for
special relief. See N.T. Hearing, 9/23/22, at 3; see also Father’s Brief at
¶ 1(a). The trial court, however, specifically found Mother’s testimony
credible that she did, in fact, serve her petition on Father. See Trial Court
Opinion, 11/3/22, at 2, n.1.
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purpose of the UCCJEA is to avoid jurisdictional competition, promote
cooperation between courts, deter the abduction of children, avoid [the
relitigation of] custody decisions of other states, and facilitate the enforcement
of custody orders of other states.” Id.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.
Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005), quoting Lucas v.
Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted).
Herein, Father argues that the trial court erred in declining to exercise
jurisdiction over the instant custody dispute. In essence, Father believes that
the trial court erred in concluding that it lacked jurisdiction to modify the New
York custody order. We disagree.
Section 5423 provides:
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
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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.A. § 5423. Thus, to modify another state's custody determination,
a court of this Commonwealth must first determine whether it has jurisdiction
to make an initial determination in a custody matter pursuant to 23 Pa.C.S.A.
§ 5421. Section 5421 provides, in relevant part:
(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[.]
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23 Pa.C.S.A. § 5421(a)(1). A child's “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. ... A
period of temporary absence of any of the mentioned persons
is part of the period.
23 Pa.C.S.A. § 5402.
Here, at the September 23, 2022 hearing, the following exchange
occurred between Mother and the trial court:
The court: [Mother,] at this time, where is your [Child]?
[Mother]: New York.
The court: How long has [the Child] resided in New York?
[Mother]: Three and a half, four years.
The court: Who does [the Child] reside there with?
[Mother]: Me.
The court: Has [the Child] resided there consistently?
[Mother]: Yes.
The court: Has [the Child] ever moved back to Pennsylvania?
[Mother]: No.
The court: When is the last time [the Child] lived in
Pennsylvania?
[Mother]: In 2017.
The court: All right. Okay. Has [the Child] resided with you
continuously since 2017?
[Mother]: Yes.
The court: All right.
[Mother]: I have sole custody.
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The court: From New York?
[Mother]: Yes.
N.T. Hearing, 9/23/22, at 9-10 (superfluous capitalization omitted). The trial
court credited Mother’s testimony and concluded that, since 2017, the Child
has resided continuously with Mother in New York. See Trial Court Order,
9/26/22, at 1, n.1; see also Trial Court Opinion, 11/1/22, at 2-3. Accordingly,
the Commonwealth is not the Child’s home state. As such, the trial court
correctly determined that it lacked jurisdiction to modify the New York custody
order. See Wagner v. Wagner, 887 A.2d 282, 288 (Pa. Super. 2005)
(holding that Pennsylvania was not “the children's ‘home state,’ and the trial
court could not exercise jurisdiction over [the] child custody case on this
basis”).
Based upon the foregoing, we affirm the trial court’s September 26,
2022 order granting Mother’s petition for special relief, dismissing all pending
petitions, and canceling the custody trial.
Order affirmed. Applications for relief denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2023
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